One of the first acts of Congress in 2009 was to overrule the U.S. Supreme Court’s Lily Ledbetter decision. Congress is now acting again. Earlier this year, the U.S. Supreme Court issued its decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), distinguishing between the Age Discrimination in Employment Act (“ADEA”) from Title VII of the Civil Rights Act of 1964. In Gross, the Court ruled that a plaintiff must prove that the employer would not have terminated him or her “but for” a reason related to age. This narrows the ability of plaintiffs to prove age discrimination, because, for other types of discrimination, the employer’s action is a “motivating factor” for discrimination, which is easier to meet.

To overturn Gross, Senator Tom Harkin (D. Iowa) and Representative George Miller (D. California) have introduced the Protecting Older Workers Against Discrimination Employment Act (“POWADEA”), H.R. 3721 and S. 1756. Under POWADEA, plaintiffs would be able to use the same, motivating-factor test that can be used in other discrimination cases. Specifically, Section 3 states that a “plaintiff establishes 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. Under the POWADEA, an employer would be able to argue that it “would have taken the same action in the absence of the impermissible motivating factor.” As with other types of discrimination, plaintiffs 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 occurred.”

We expect Congress to consider this legislation during 2010 and, if history is a guide, enact it. Therefore, in light of Congress’s action, prior to taking action, employers should evaluate their risks using the higher standard. Possible defenses include making decisions for legitimate business reasons unrelated to the employee’s age and documenting the decision-making process as well as the reason(s) for the decision. We recommend that every human resource professional audit the practices utilized by his or her employer to ensure the effective management of risk as well as compliance with applicable laws.