I 
114TH CONGRESS 
2D SESSION 
H. R. 5574 
To amend the Age Discrimination in Employment Act of 1967 and other 
laws to clarify appropriate standards for Federal employment discrimina-
tion and retaliation claims, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
JUNE 24, 2016 
Mr. SCOTT of Virginia (for himself and Mr. YOUNG of Iowa) introduced the 
following bill; which was referred to the Committee on Education and the 
Workforce 
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. 
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 PURPOSES. 
(a) FINDINGS.—Congress finds the following: 
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(1) In enacting section 107 of the Civil Rights 
Act of 1991 (adding section 703(m) of the Civil 
Rights Act of 1964), Congress reaffirmed its under-
standing that unlawful discrimination is often dif-
ficult to detect and prove because discriminators do 
not usually admit their discrimination and often try 
to conceal their true motives. Section 703(m) of the 
Civil Rights Act of 1964 expressly approved so- 
called ‘‘mixed motive’’ claims, providing that an un-
lawful employment practice is established when a 
protected characteristic was a motivating factor for 
any employment practice, even though other factors 
also motivated the practice. 
(2) Congress enacted amendments to other civil 
rights statutes, including the Age Discrimination in 
Employment Act of 1967 (referred to in this section 
as the ‘‘ADEA’’), the Americans with Disabilities 
Act of 1990, and the Rehabilitation Act of 1973, but 
Congress did not expressly amend those statutes to 
address mixed motive discrimination. 
(3) In the case of Gross v. FBL Financial Serv-
ices, Inc., 557 U.S. 167 (2009), the Supreme Court 
held that, because Congress did not expressly amend 
the ADEA to address mixed motive claims, such 
claims were unavailable under the ADEA, and in-
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stead the complainant bears the burden of proving 
that a protected characteristic or protected activity 
was the ‘‘but for’’ cause of an unlawful employment 
practice. This decision has significantly narrowed 
the scope of protections afforded by the statutes that 
were not expressly amended in 1991 to address 
mixed motive claims. 
(b) PURPOSES.—The purposes of this Act are— 
(1) to clarify congressional intent that mixed 
motive claims shall be available, and that a com-
plaining party need not prove that a protected char-
acteristic or protected activity was the ‘‘but for’’ 
cause of an unlawful employment practice, under the 
ADEA and similar civil rights provisions; 
(2) to reject the Supreme Court’s reasoning in 
the Gross decision that Congress’ failure to amend 
any statute other than title VII of the Civil Rights 
Act of 1964 (with respect to discrimination claims), 
in enacting section 107 of the Civil Rights Act of 
1991, suggests that Congress intended to disallow 
mixed motive claims under other statutes; and 
(3) to clarify that complaining parties— 
(A) may rely on any type or form of ad-
missible evidence to establish their claims of an 
unlawful employment practice; 
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(B) are not required to demonstrate that 
the protected characteristic or activity was the 
sole cause of the employment practice; and 
(C) may demonstrate an unlawful employ-
ment practice through any available method of 
proof or analytical framework. 
SEC. 3. STANDARDS OF PROOF. 
(a) AGE DISCRIMINATION IN EMPLOYMENT ACT OF 
1967.— 
(1) CLARIFYING PROHIBITION AGAINST IMPER-
MISSIBLE CONSIDERATION OF AGE IN EMPLOYMENT 
PRACTICES.—Section 4 of the Age Discrimination in 
Employment Act of 1967 (29 U.S.C. 623) is amend-
ed by inserting after subsection (f) the following: 
‘‘(g)(1) Except as otherwise provided in this Act, an 
unlawful practice is established under this Act when the 
complaining party demonstrates that age or an activity 
protected by subsection (d) was a motivating factor for 
any practice, even though other factors also motivated the 
practice. 
‘‘(2) In establishing an unlawful practice under this 
Act, including under paragraph (1) or by any other meth-
od of proof, a complaining party— 
‘‘(A) may rely on any type or form of admis-
sible evidence and need only produce evidence suffi-
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cient for a reasonable trier of fact to find that an 
unlawful practice occurred under this Act; and 
‘‘(B) shall not be required to demonstrate that 
age or an activity protected by subsection (d) was 
the sole cause of a practice.’’. 
(2) REMEDIES.—Section 7 of such Act (29 
U.S.C. 626) is amended— 
(A) in subsection (b)— 
(i) in the first sentence, by striking 
‘‘The’’ and inserting ‘‘(1) The’’; 
(ii) in the third sentence, by striking 
‘‘Amounts’’ and inserting the following: 
‘‘(2) Amounts’’; 
(iii) in the fifth sentence, by striking 
‘‘Before’’ and inserting the following: 
‘‘(4) Before’’; and 
(iv) by inserting before paragraph (4), 
as designated by clause (iii) of this sub-
paragraph, the following: 
‘‘(3) On a claim in which an individual demonstrates 
that age was a motivating factor for any employment prac-
tice, under section 4(g)(1), and a respondent demonstrates 
that the respondent would have taken the same action in 
the absence of the impermissible motivating factor, the 
court— 
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‘‘(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 sec-
tion 4(g)(1); and 
‘‘(B) shall not award damages or issue an order 
requiring any admission, reinstatement, hiring, pro-
motion, or payment.’’; and 
(B) in subsection (c)(1), by striking ‘‘Any’’ 
and inserting ‘‘Subject to subsection (b)(3), 
any’’. 
(3) DEFINITIONS.—Section 11 of such Act (29 
U.S.C. 630) is amended by adding at the end the 
following: 
‘‘(m) The term ‘demonstrates’ means meets the bur-
dens of production and persuasion.’’. 
(4) FEDERAL EMPLOYEES.—Section 15 of such 
Act (29 U.S.C. 633a) is amended by adding at the 
end the following: 
‘‘(h) Sections 4(g) and 7(b)(3) shall apply to mixed 
motive claims (involving practices described in section 
4(g)(1)) under this section.’’. 
(b) TITLE VII OF
THE CIVIL RIGHTS ACT
OF 
1964.— 
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(1) CLARIFYING PROHIBITION AGAINST IMPER-
MISSIBLE CONSIDERATION OF RACE, COLOR, RELI-
GION, SEX, OR NATIONAL ORIGIN IN EMPLOYMENT 
PRACTICES.—Section 703 of the Civil Rights Act of 
1964 (42 U.S.C. 2000e–2) is amended by striking 
subsection (m) and inserting the following: 
‘‘(m) Except as otherwise provided in this title, an 
unlawful employment practice is established under this 
title when the complaining party demonstrates that race, 
color, religion, sex, or national origin or an activity pro-
tected by section 704(a) was a motivating factor for any 
employment practice, even though other factors also moti-
vated the practice.’’. 
(2) FEDERAL
EMPLOYEES.—Section 717 of 
such Act (42 U.S.C. 2000e–16) is amended by add-
ing at the end the following: 
‘‘(g) Sections 703(m) and 706(g)(2)(B) shall apply 
to mixed motive cases (involving practices described in sec-
tion 703(m)) under this section.’’. 
(c) AMERICANS WITH DISABILITIES ACT OF 1990.— 
(1) DEFINITIONS.—Section 101 of the Ameri-
cans with Disabilities Act of 1990 (42 U.S.C. 
12111) is amended by adding at the end the fol-
lowing: 
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‘‘(11) 
DEMONSTRATES.—The 
term 
‘dem-
onstrates’ means meets the burdens of production 
and persuasion.’’. 
(2) CLARIFYING PROHIBITION AGAINST IMPER-
MISSIBLE
CONSIDERATION
OF
DISABILITY
IN
EM-
PLOYMENT
PRACTICES.—Section 102 of such Act 
(42 U.S.C. 12112) is amended by adding at the end 
the following: 
‘‘(e) PROOF.— 
‘‘(1) ESTABLISHMENT.—Except as otherwise 
provided in this Act, a discriminatory practice is es-
tablished under this Act when the complaining party 
demonstrates that disability or an activity protected 
by subsection (a) or (b) of section 503 was a moti-
vating factor for any employment practice, even 
though other factors also motivated the practice. 
‘‘(2) DEMONSTRATION.—In establishing a dis-
criminatory practice under paragraph (1) or by any 
other method of proof, a complaining party— 
‘‘(A) may rely on any type or form of ad-
missible evidence and need only produce evi-
dence sufficient for a reasonable trier of fact to 
find that a discriminatory practice occurred 
under this Act; and 
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‘‘(B) shall not be required to demonstrate 
that disability or an activity protected by sub-
section (a) or (b) of section 503 was the sole 
cause of an employment practice.’’. 
(3) CERTAIN ANTIRETALIATION CLAIMS.—Sec-
tion 503(c) of such Act (42 U.S.C. 12203(c)) is 
amended— 
(A) by striking ‘‘The remedies’’ and insert-
ing the following: 
‘‘(1) IN GENERAL.—Except as provided in para-
graph (2), the remedies’’; and 
(B) by adding at the end the following: 
‘‘(2) CERTAIN ANTIRETALIATION CLAIMS.—Sec-
tion 107(c) shall apply to claims under section 
102(e)(1) with respect to title I.’’. 
(4) REMEDIES.—Section 107 of such Act (42 
U.S.C. 12117) is amended by adding at the end the 
following: 
‘‘(c) DISCRIMINATORY MOTIVATING FACTOR.—On a 
claim in which an individual demonstrates that disability 
was a motivating factor for any employment practice, 
under section 102(e)(1), and a respondent demonstrates 
that the respondent would have taken the same action in 
the absence of the impermissible motivating factor, the 
court— 
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‘‘(1) may grant declaratory relief, injunctive re-
lief (except as provided in paragraph (2)), and attor-
ney’s fees and costs demonstrated to be directly at-
tributable only to the pursuit of a claim under sec-
tion 102(e)(1); and 
‘‘(2) shall not award damages or issue an order 
requiring any admission, reinstatement, hiring, pro-
motion, or payment.’’. 
(d) REHABILITATION ACT OF 1973.— 
(1) IN GENERAL.—Sections 501(f), 503(d), and 
504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 
791(f), 793(d), and 794(d)), are each amended by 
adding after the words ‘‘title I of the Americans 
with Disabilities Act of 1990 (42 U.S.C. 12111 et 
seq.)’’ the following: ‘‘, including the standards of 
causation or methods of proof applied under section 
102(e) of that Act (42 U.S.C. 12112(e)),’’. 
(2) FEDERAL
EMPLOYEES.—The amendment 
made by paragraph (1) to section 501(f) shall be 
construed to apply to all employees covered by sec-
tion 501. 
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SEC. 4. APPLICATION. 
This Act, and the amendments made by this Act, 
shall apply to all claims pending on or after the date of 
enactment of this Act. 
Æ 
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