II 

118TH CONGRESS 

1ST SESSION S. 1030 

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 

MARCH 29, 2023 

Mr. CASEY (for himself, Mr. GRASSLEY, Ms. HASSAN, Ms. COLLINS, Ms. 

BALDWIN, and Ms. MURKOWSKI) 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’’. 


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1 SEC. 2. STANDARDS OF PROOF. 

2 (a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF

3 1967.— 

4 (1) CLARIFYING PROHIBITION AGAINST IMPER5 MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT

6 PRACTICES.—Section 4 of the Age Discrimination in 

7 Employment Act of 1967 (29 U.S.C. 623) is amend8 ed by inserting after subsection (f) the following: 

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

10 unlawful practice is established under this Act when the 

11 complaining party demonstrates that age or an activity 

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

13 any practice, even though other factors also motivated the 

14 practice. 

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

16 Act, including under paragraph (1) or by any other meth17 od of proof, a complaining party— 

18 ‘‘(A) may rely on any type or form of admis19 sible evidence and need only produce evidence suffi20 cient for a reasonable trier of fact to find that an 

21 unlawful practice occurred under this Act; and 

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

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

24 the sole cause of a practice.’’. 

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

26 U.S.C. 626) is amended— 


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1 (A) in subsection (b)— 

2 (i) in the first sentence, by striking 

3 ‘‘The’’ and inserting ‘‘(1) The’’; 

4 (ii) in the third sentence, by striking 

5 ‘‘Amounts’’ and inserting the following: 

6 ‘‘(2) Amounts’’; 

7 (iii) in the fifth sentence, by striking 

8 ‘‘Before’’ and inserting the following: 

9 ‘‘(4) Before’’; and 

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

11 as designated by clause (iii) of this sub12 paragraph, the following: 

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

14 that age was a motivating factor for any employment prac15 tice under section 4(g)(1), and a respondent demonstrates 

16 that the respondent would have taken the same action in 

17 the absence of the impermissible motivating factor, the 

18 court— 

19 ‘‘(A) may grant declaratory relief, injunctive re20 lief (except as provided in subparagraph (B)), and 

21 attorney’s fees and costs demonstrated to be directly 

22 attributable only to the pursuit of a claim under sec23 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 ‘dem20 onstrates’ means meets the burdens of production 

21 and 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 need only produce evi16 dence sufficient for a reasonable trier of fact to 

17 find that a discriminatory practice occurred 

18 under this Act; and 

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

20 that disability or an activity protected by sub21 section (a) or (b) of section 503 was the sole 

22 cause of an employment practice.’’. 

23 (3) CERTAIN ANTI-RETALIATION CLAIMS.—Sec24 tion 503(c) of such Act (42 U.S.C. 12203(c)) is 

25 amended— 


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1 (A) by striking ‘‘The remedies’’ and insert2 ing the following: 

3 ‘‘(1) IN GENERAL.—Except as provided in para4 graph (2), the remedies’’; and 

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

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

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

8 102(e)(1) with respect to title I.’’. 

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

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

11 following: 

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

13 claim in which an individual demonstrates that disability 

14 was a motivating factor for any employment practice 

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

16 that the respondent would have taken the same action in 

17 the absence of the impermissible motivating factor, the 

18 court— 

19 ‘‘(1) may grant declaratory relief, injunctive re20 lief (except as provided in paragraph (2)), and attor21 ney’s fees and costs demonstrated to be directly at22 tributable only to the pursuit of a claim under sec23 tion 102(e)(1); and 


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

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

4 (d) REHABILITATION ACT OF 1973.— 

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

6 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 

7 791(f), 793(d), and 794(d)), are each amended by 

8 adding after ‘‘title I of the Americans with Disabil9 ities Act of 1990 (42 U.S.C. 12111 et seq.)’’ the fol10 lowing: ‘‘, including the standards of causation or 

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

12 that Act (42 U.S.C. 12112(e)),’’. 

13 (2) FEDERAL EMPLOYEES.—The amendment 

14 made by paragraph (1) to section 501(f) of the Re15 habilitation Act of 1973 (29 U.S.C. 791(f)) shall be 

16 construed to apply to all employees covered by sec17 tion 501 of that Act (29 U.S.C. 791). 

18 SEC. 3. APPLICATION. 

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

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

21 enactment of this Act. 

22 SEC. 4. SEVERABILITY. 

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

24 this Act, or the application of such provision or amend25 ment to any person or circumstance is held to be unconstiVerDate Sep 11 2014 03:55 Apr 08, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1030.IS S1030

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1 tutional, the remainder of this Act, the amendments made 

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

3 to any person or circumstance shall not be affected there4 by. 

Æ 


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