I 
111TH CONGRESS 
1ST SESSION H. R. 3721 
To amend the Age Discrimination in Employment Act of 1967 to clarify 
the appropriate standard of proof. 
IN THE HOUSE OF REPRESENTATIVES 
OCTOBER 6, 2009 
Mr. GEORGE MILLER of California (for himself, Mr. CONYERS, Mr. ANDREWS, 
Mr. NADLER of New York, Mr. COURTNEY, Ms. CHU, Ms. CLARKE, Mr. 
HOLT, Mr. HARE, Mr. KILDEE, Mr. LOEBSACK, Mr. SABLAN, Mr. SCOTT 
of Virginia, Ms. HIRONO, Ms. WOOLSEY, Mr. BISHOP of New York, and 
Mr. SESTAK) introduced the following bill; which was referred to the 
Committee on Education and Labor, and in addition to the Committee 
on the Judiciary, for a period to be subsequently determined by the 
Speaker, in each case for consideration of such provisions as fall within 
the jurisdiction of the committee concerned 
A BILL 
To amend the Age Discrimination in Employment Act of 
1967 to clarify the appropriate standard of proof. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Protecting Older 
Workers Against Discrimination Act’’. 
SEC. 2. FINDINGS AND PURPOSE. 
(a) FINDINGS.—Congress finds the following: 
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(1) In enacting the Age Discrimination in Em-
ployment Act of 1967, Congress intended to elimi-
nate discrimination against individuals in the work-
place based on age. 
(2) In passing the Civil Rights Act of 1991, 
Congress correctly recognized that unlawful discrimi-
nation is often difficult to detect and prove because 
discriminators do not usually admit their discrimina-
tion and often try to conceal their true motives. 
(3) Congress has relied on a long line of court 
cases holding that language in the Age Discrimina-
tion in Employment Act of 1967, and similar anti-
discrimination and antiretaliation laws, that is near-
ly identical to language in title VII of the Civil 
Rights Act of 1964 would be interpreted consistently 
with judicial interpretations of title VII of the Civil 
Rights Act of 1964, including amendments made by 
the Civil Rights Act of 1991. The Supreme Court’s 
decision in Gross v. FBL Financial Services, Inc., 
129 S. Ct. 2343 (2009), has eroded this long-held 
understanding of consistent interpretation and cir-
cumvented well-established precedents. 
(4) The holding of the Supreme Court in Gross, 
by requiring proof that age was the ‘‘but for’’ cause 
of employment discrimination, has narrowed the 
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scope of protection intended to be afforded by the 
Age Discrimination in Employment Act of 1967, 
thus eliminating protection for many individuals 
whom Congress intended to protect. 
(5) The Supreme Court’s holding in Gross, rely-
ing on misconceptions about the Age Discrimination 
in Employment Act of 1967 articulated in prior de-
cisions of the Court, has significantly narrowed the 
broad scope of the protections of the Age Discrimi-
nation in Employment Act of 1967. 
(6) Unless Congress takes action, victims of age 
discrimination will find it unduly difficult to prove 
their claims and victims of other types of discrimina-
tion may find their rights and remedies uncertain 
and unpredictable. 
(b) PURPOSE.—The purpose of this Act is to ensure 
that the standard for proving unlawful disparate treat-
ment under the Age Discrimination in Employment Act 
of 1967 and other anti-discrimination and anti-retaliation 
laws is no different than the standard for making such 
a proof under title VII of the Civil Rights Act of 1964, 
including amendments made by the Civil Rights Act of 
1991. 
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SEC. 3. STANDARD OF PROOF. 
Section 4 of the Age Discrimination in Employment 
Act of 1967 (29 U.S.C. 623) is amended by adding after 
subsection (f) the following: 
‘‘(g)(1) For any claim brought under this Act or any 
other authority described in paragraph (5), a plaintiff es-
tablishes an unlawful employment practice if the plaintiff 
demonstrates by a preponderance of the evidence that— 
‘‘(A) an impermissible factor under that Act or 
authority was a motivating factor for the practice 
complained of, even if other factors also motivated 
that practice; or 
‘‘(B) the practice complained of would not have 
occurred in the absence of an impermissible factor. 
‘‘(2) On a claim in which a plaintiff demonstrates a 
violation under paragraph (1)(A) and a defendant dem-
onstrates that the defendant would have taken the same 
action in the absence of the impermissible motivating fac-
tor, the court— 
‘‘(A) may grant declaratory relief, injunctive re-
lief (except as provided in subparagraph (B)), and 
attorney’s fees and costs demonstrated to be directly 
attributable only to the pursuit of a claim under 
paragraph (1); and 
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‘‘(B) shall not award damages or issue an order 
requiring any admission, reinstatement, hiring, pro-
motion, or payment. 
‘‘(3) In making the demonstration required by para-
graph (1), a plaintiff may rely on any type or form of 
admissible circumstantial or direct evidence and need only 
produce evidence sufficient for a reasonable trier of fact 
to conclude that a violation described in subparagraph (A) 
or (B) of paragraph (1) occurred. 
‘‘(4) Every method for proving either such violation, 
including the evidentiary framework set forth in McDon-
nell-Douglas Corp. v. Green, 411 U.S. 792 (1973), shall 
be available to the plaintiff. 
‘‘(5) This subsection shall apply to any claim that the 
practice complained of was motivated by a reason that is 
impermissible, with regard to that practice, under— 
‘‘(A) this Act, including subsection (d); 
‘‘(B) any Federal law forbidding employment 
discrimination; 
‘‘(C) any law forbidding discrimination of the 
type described in subsection (d) or forbidding other 
retaliation against an individual for engaging in, or 
interference with, any federally protected activity in-
cluding the exercise of any right established by Fed-
eral law (including a whistleblower law); or 
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