Title: Protecting Older Workers Against Discrimination Act
Policy area: Labor and Employment

Summary:
Protecting Older Workers Against Discrimination Act
This bill revises the evidentiary standard for age discrimination by establishing an unlawful employment practice when the complaining party demonstrates that age or participation in an investigation, proceeding, or litigation related to an age discrimination claim was a motivating factor for an adverse practice, even though other factors also motivated the practice (thereby allowing what are commonly known as mixed motive claims).
The bill (1) permits the complaining party to rely on any type or form of admissible evidence, which need only be sufficient for a reasonable trier of fact to find that an unlawful practice occurred; and (2) declares that the complaining party shall not be required to demonstrate that age or retaliation was the sole cause of the employment practice (thereby rejecting the Supreme Court's decision in Gross v. FBL Financial Services, Inc., which requires the complainant to prove that age was the but-for cause for the employer's decision).
The bill applies this evidentiary standard to other employment discrimination and retaliation claims, including claims under the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, and the Rehabilitation Act of 1973.
In a claim in which age discrimination is shown, but where the employer demonstrates that it would have taken the same action absent the motivating factor of age, the bill authorizes courts to grant declaratory and injunctive relief, but prohibits the court from awarding damages or issuing an order requiring any admission, reinstatement, hiring, promotion, or payment. This limitation also applies to claims of discrimination based on disability.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 880 Introduced in Senate (IS)]

<DOC>






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.

    Be it enacted by the Senate and House of Representatives 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. STANDARDS OF PROOF.

    (a) Age Discrimination in Employment Act of 1967.--
            (1) Clarifying prohibition against impermissible 
        consideration of age in employment practices.--Section 4 of the 
        Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is 
        amended 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 method of proof, a 
complaining party--
            ``(A) may rely on any type or form of admissible evidence 
        and need only produce evidence sufficient 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 
                        subparagraph, the following:
    ``(3) On a claim in which an individual demonstrates that age was a 
motivating factor for any employment practice 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--
            ``(A) may grant declaratory relief, injunctive relief 
        (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 section 4(g)(1); and
            ``(B) shall not award damages or issue an order requiring 
        any admission, reinstatement, hiring, promotion, 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 burdens 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.--
            (1) Clarifying prohibition against impermissible 
        consideration of race, color, religion, 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 when the complaining party 
demonstrates that race, color, religion, sex, national origin, or an 
activity protected by section 704(a) was a motivating factor for any 
employment practice, even though other factors also motivated the 
practice.''.
            (2) Federal employees.--Section 717 of such Act (42 U.S.C. 
        2000e-16) is amended by adding at the end the following:
    ``(g) Sections 703(m) and 706(g)(2)(B) shall apply to mixed motive 
cases (involving practices described in section 703(m)) under this 
section.''.
    (c) Americans With Disabilities Act of 1990.--
            (1) Definitions.--Section 101 of the Americans with 
        Disabilities Act of 1990 (42 U.S.C. 12111) is amended by adding 
        at the end the following:
            ``(11) Demonstrates.--The term `demonstrates' means meets 
        the burdens of production and persuasion.''.
            (2) Clarifying prohibition against impermissible 
        consideration of disability in employment 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 established under this Act 
        when the complaining party demonstrates that disability or an 
        activity protected by subsection (a) or (b) of section 503 was 
        a motivating factor for any employment practice, even though 
        other factors also motivated the practice.
            ``(2) Demonstration.--In establishing a discriminatory 
        practice under paragraph (1) or by any other method of proof, a 
        complaining party--
                    ``(A) may rely on any type or form of admissible 
                evidence and need only produce evidence sufficient for 
                a reasonable trier of fact to find that a 
                discriminatory practice occurred under this Act; and
                    ``(B) shall not be required to demonstrate that 
                disability or an activity protected by subsection (a) 
                or (b) of section 503 was the sole cause of an 
                employment practice.''.
            (3) Certain anti-retaliation claims.--Section 503(c) of 
        such Act (42 U.S.C. 12203(c)) is amended--
                    (A) by striking ``The remedies'' and inserting the 
                following:
            ``(1) In general.--Except as provided in paragraph (2), the 
        remedies''; and
                    (B) by adding at the end the following:
            ``(2) Certain anti-retaliation claims.--Section 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--
            ``(1) may grant declaratory relief, injunctive relief 
        (except as provided in paragraph (2)), and attorney's fees and 
        costs demonstrated to be directly attributable only to the 
        pursuit of a claim under section 102(e)(1); and
            ``(2) shall not award damages or issue an order requiring 
        any admission, reinstatement, hiring, promotion, 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 ``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) of the Rehabilitation Act of 1973 (29 U.S.C. 
        791(f)) shall be construed to apply to all employees covered by 
        section 501 of that Act (29 U.S.C. 791).

SEC. 3. 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.

SEC. 4. SEVERABILITY.

    If any provision of this Act, an amendment made by this Act, or the 
application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act, 
the amendments made by this Act, and the application of the provisions 
of such to any person or circumstance shall not be affected thereby.
                                 <all>