II 

117TH CONGRESS 

1ST SESSION S. 880 

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 22, 2021 

Mr. CASEY (for himself, Mr. GRASSLEY, Mr. LEAHY, and Ms. COLLINS) 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. STANDARDS OF PROOF. 

7 (a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF

8 1967.— 


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1 (1) CLARIFYING PROHIBITION AGAINST IMPER2 MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT

3 PRACTICES.—Section 4 of the Age Discrimination in 

4 Employment Act of 1967 (29 U.S.C. 623) is amend5 ed by inserting after subsection (f) the following: 

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

7 unlawful practice is established under this Act when the 

8 complaining party demonstrates that age or an activity 

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

10 any practice, even though other factors also motivated the 

11 practice. 

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

13 Act, including under paragraph (1) or by any other meth14 od of proof, a complaining party— 

15 ‘‘(A) may rely on any type or form of admis16 sible evidence and need only produce evidence suffi17 cient for a reasonable trier of fact to find that an 

18 unlawful practice occurred under this Act; and 

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

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

21 the sole cause of a practice.’’. 

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

23 U.S.C. 626) is amended— 

24 (A) in subsection (b)— 


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1 (i) in the first sentence, by striking 

2 ‘‘The’’ and inserting ‘‘(1) The’’; 

3 (ii) in the third sentence, by striking 

4 ‘‘Amounts’’ and inserting the following: 

5 ‘‘(2) Amounts’’; 

6 (iii) in the fifth sentence, by striking 

7 ‘‘Before’’ and inserting the following: 

8 ‘‘(4) Before’’; and 

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

10 as designated by clause (iii) of this sub11 paragraph, the following: 

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

13 that age was a motivating factor for any employment prac14 tice under section 4(g)(1), and a respondent demonstrates 

15 that the respondent would have taken the same action in 

16 the absence of the impermissible motivating factor, the 

17 court— 

18 ‘‘(A) may grant declaratory relief, injunctive re19 lief (except as provided in subparagraph (B)), and 

20 attorney’s fees and costs demonstrated to be directly 

21 attributable only to the pursuit of a claim under sec22 tion 4(g)(1); and 

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

24 requiring any admission, reinstatement, hiring, pro25 motion, or payment.’’; and 


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

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

3 any’’. 

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

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

6 following: 

7 ‘‘(m) The term ‘demonstrates’ means meets the bur8 dens of production and persuasion.’’. 

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

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

11 end the following: 

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

13 motive claims (involving practices described in section 

14 4(g)(1)) under this section.’’. 

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

16 1964.— 

17 (1) CLARIFYING PROHIBITION AGAINST IMPER18 MISSIBLE CONSIDERATION OF RACE, COLOR, RELI19 GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT

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

21 1964 (42 U.S.C. 2000e–2) is amended by striking 

22 subsection (m) and inserting the following: 

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

24 unlawful employment practice is established when the 

25 complaining party demonstrates that race, color, religion, 


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

2 704(a) was a motivating factor for any employment prac3 tice, even though other factors also motivated the prac4 tice.’’. 

5 (2) FEDERAL EMPLOYEES.—Section 717 of 

6 such Act (42 U.S.C. 2000e–16) is amended by add7 ing at the end the following: 

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

9 to mixed motive cases (involving practices described in sec10 tion 703(m)) under this section.’’. 

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

12 (1) DEFINITIONS.—Section 101 of the Ameri13 cans with Disabilities Act of 1990 (42 U.S.C. 

14 12111) is amended by adding at the end the fol15 lowing: 

16 ‘‘(11) DEMONSTRATES.—The term ‘dem17 onstrates’ means meets the burdens of production 

18 and persuasion.’’. 

19 (2) CLARIFYING PROHIBITION AGAINST IMPER20 MISSIBLE CONSIDERATION OF DISABILITY IN EM21 PLOYMENT PRACTICES.—Section 102 of such Act 

22 (42 U.S.C. 12112) is amended by adding at the end 

23 the following: 

24 ‘‘(e) PROOF.— 


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

2 provided in this Act, a discriminatory practice is es3 tablished under this Act when the complaining party 

4 demonstrates that disability or an activity protected 

5 by subsection (a) or (b) of section 503 was a moti6 vating factor for any employment practice, even 

7 though other factors also motivated the practice. 

8 ‘‘(2) DEMONSTRATION.—In establishing a dis9 criminatory practice under paragraph (1) or by any 

10 other method of proof, a complaining party— 

11 ‘‘(A) may rely on any type or form of ad12 missible evidence and need only produce evi13 dence sufficient for a reasonable trier of fact to 

14 find that a discriminatory practice occurred 

15 under this Act; 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 


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1 to any person or circumstance shall not be affected there2 by. 

Æ 


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