IIB 

116TH CONGRESS 

2D SESSION H. R. 1230 

IN THE SENATE OF THE UNITED STATES 

JANUARY 16, 2020 

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’’. 

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 need only produce evidence suffi23 cient for a reasonable trier of fact to find that an 

24 unlawful practice occurred under this Act; and 


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

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

3 the sole cause of a practice.’’. 

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

5 U.S.C. 626) is amended— 

6 (A) in subsection (b)— 

7 (i) in the first sentence, by striking 

8 ‘‘The’’ and inserting ‘‘(1) The’’; 

9 (ii) in the third sentence, by striking 

10 ‘‘Amounts’’ and inserting the following: 

11 ‘‘(2) Amounts’’; 

12 (iii) in the fifth sentence, by striking 

13 ‘‘Before’’ and inserting the following: 

14 ‘‘(4) Before’’; and 

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

16 as designated by clause (iii) of this sub17 paragraph, the following: 

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

19 that age was a motivating factor for any employment prac20 tice, under section 4(g)(1), and a respondent demonstrates 

21 that the respondent would have taken the same action in 

22 the absence of the impermissible motivating factor, the 

23 court— 

24 ‘‘(A) may grant declaratory relief, injunctive re25 lief (except as provided in subparagraph (B)), and 


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1 attorney’s fees and costs demonstrated to be directly 

2 attributable only to the pursuit of a claim under sec3 tion 4(g)(1); and 

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

5 requiring any admission, reinstatement, hiring, pro6 motion, or payment.’’; and 

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

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

9 any’’. 

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

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

12 following: 

13 ‘‘(m) The term ‘demonstrates’ means meets the bur14 dens of production and persuasion.’’. 

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

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

17 end the following: 

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

19 motive claims (involving practices described in section 

20 4(g)(1)) under this section.’’. 

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

22 1964.— 

23 (1) CLARIFYING PROHIBITION AGAINST IMPER24 MISSIBLE CONSIDERATION OF RACE, COLOR, RELI25 GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT


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

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

3 subsection (m) and inserting the following: 

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

5 unlawful employment practice is established when the 

6 complaining party demonstrates that race, color, religion, 

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

8 704(a) was a motivating factor for any employment prac9 tice, even though other factors also motivated the prac10 tice.’’. 

11 (2) FEDERAL EMPLOYEES.—Section 717 of 

12 such Act (42 U.S.C. 2000e–16) is amended by add13 ing at the end the following: 

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

15 to mixed motive cases (involving practices described in sec16 tion 703(m)) under this section.’’. 

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

18 (1) DEFINITIONS.—Section 101 of the Ameri19 cans with Disabilities Act of 1990 (42 U.S.C. 

20 12111) is amended by adding at the end the fol21 lowing: 

22 ‘‘(11) DEMONSTRATES.—The term ‘dem23 onstrates’ means meets the burdens of production 

24 and persuasion.’’. 


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1 (2) CLARIFYING PROHIBITION AGAINST IMPER2 MISSIBLE CONSIDERATION OF DISABILITY IN EM3 PLOYMENT PRACTICES.—Section 102 of such Act 

4 (42 U.S.C. 12112) is amended by adding at the end 

5 the following: 

6 ‘‘(e) PROOF.— 

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

8 provided in this Act, a discriminatory practice is es9 tablished under this Act when the complaining party 

10 demonstrates that disability or an activity protected 

11 by subsection (a) or (b) of section 503 was a moti12 vating factor for any employment practice, even 

13 though other factors also motivated the practice. 

14 ‘‘(2) DEMONSTRATION.—In establishing a dis15 criminatory practice under paragraph (1) or by any 

16 other method of proof, a complaining party— 

17 ‘‘(A) may rely on any type or form of ad18 missible evidence and need only produce evi19 dence sufficient for a reasonable trier of fact to 

20 find that a discriminatory practice occurred 

21 under this Act; and 

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

23 that disability or an activity protected by sub24 section (a) or (b) of section 503 was the sole 

25 cause of an employment practice.’’. 


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1 (3) CERTAIN ANTI-RETALIATION CLAIMS.—Sec2 tion 503(c) of such Act (42 U.S.C. 12203(c)) is 

3 amended— 

4 (A) by striking ‘‘The remedies’’ and insert5 ing the following: 

6 ‘‘(1) IN GENERAL.—Except as provided in para7 graph (2), the remedies’’; and 

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

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

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

11 102(e)(1) with respect to title I.’’. 

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

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

14 following: 

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

16 claim in which an individual demonstrates that disability 

17 was a motivating factor for any employment practice, 

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

19 that the respondent would have taken the same action in 

20 the absence of the impermissible motivating factor, the 

21 court— 

22 ‘‘(1) may grant declaratory relief, injunctive re23 lief (except as provided in paragraph (2)), and attor24 ney’s fees and costs demonstrated to be directly atVerDate Sep 11 2014 21:10 Jan 16, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1230.RFS H1230

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1 tributable only to the pursuit of a claim under sec2 tion 102(e)(1); and 

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

4 requiring any admission, reinstatement, hiring, pro5 motion, or payment.’’. 

6 (d) REHABILITATION ACT OF 1973.— 

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

8 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 

9 791(f), 793(d), and 794(d)), are each amended by 

10 adding after ‘‘title I of the Americans with Disabil11 ities Act of 1990 (42 U.S.C. 12111 et seq.)’’ the fol12 lowing: ‘‘, including the standards of causation or 

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

14 that Act (42 U.S.C. 12112(e)),’’. 

15 (2) FEDERAL EMPLOYEES.—The amendment 

16 made by paragraph (1) to section 501(f) shall be 

17 construed to apply to all employees covered by sec18 tion 501. 

19 SEC. 3. APPLICATION. 

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

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

22 enactment of this Act. 

23 SEC. 4. SEVERABILITY. 

24 If any provision or portion of a provision of this Act, 

25 an amendment or portion of an amendment made by this 


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1 Act, or the application of any provision or portion thereof 

2 or amendment or portion thereof to particular persons or 

3 circumstances is held invalid or found to be unconstitu4 tional, the remainder of this Act, the amendments made 

5 by this Act, or the application of that provision or portion 

6 thereof or amendment or portion thereof to other persons 

7 or circumstances shall not be affected. 

8 SEC. 5. REPORT BY GOVERNMENT ACCOUNTABILITY OF9 FICE. 

10 Not later than 2 years after the date of the enact11 ment of this Act, the Government Accountability Office 

12 shall submit to the Congress a report analyzing how the 

13 Equal Employment Opportunity Commission investigates 

14 mixed motive age discrimination claims arising under the 

15 Acts amended by this Act, focusing on— 

16 (1) the ability of the Commission to meet the 

17 demands of its workload under such Acts; 

18 (2) the plans of the Commission for inves19 tigating systemic age discrimination in violation of 

20 such Acts; 

21 (3) the plans of the Commission for litigation 

22 under such Acts; and 

23 (4) the options for improving the ability of the 

24 Commission to respond to allegations of age dis25 crimination in violation of such Acts. 


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1 SEC. 6. 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 Oppor4 tunity Employment 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. 7. REPORTS. 

16 For the 5-year period beginning on the date of the 

17 enactment of this Act, the Chairman of Equal Employ18 ment Opportunity Commission shall submit to the Com19 mittee on Education and Labor of the House of Rep20 resentatives and the Committee on Health, Education, 

21 Labor, and Pensions of the Senate a report at 1-year in22 tervals on the number of age discrimination in employ23 ment claims brought under this Act with the Equal Em24 ployment Opportunity Commission in the period for which 

25 such report is submitted. 


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1 SEC. 8. REPORT BY THE UNITED STATES COMMISSION ON 

2 CIVIL RIGHTS. 

3 (a) REPORT.—With funds appropriated in advance to 

4 carry out this section, and consistent with the operational 

5 and procedural requirements of the United States Com6 mission on Civil Rights, the Commission shall submit to 

7 the appropriate committees of the Congress a report con8 taining an analysis of the status of Federal mixed motive 

9 age discrimination in employment claims made against 

10 Federal agencies, including— 

11 (1) the number of such claims, specified by the 

12 Federal agency against which such claims are made; 

13 and 

14 (2) other related information the Commission 

15 determines to be appropriate. 

16 (b) SUBMISSION OF REPORT.—The report required 

17 by subsection (a) shall be submitted not later that 5 years 

18 after the date of the enactment of this Act. 

Passed the House of Representatives January 15, 

2020. 

Attest: CHERYL L. JOHNSON, 

Clerk. 


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