Earlier this summer the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties held hearings on H.R. 3721, a/k/a the “Protecting Older Workers From Discrimination Act” (POWADA), which was introduced in the wake of the Supreme Court’s controversial 5-4 decision in Gross v. FBL Financial Services, Inc. In the decision written by Justice Clarence Thomas, the Supreme Court held that under the Age Discrimination in Employment Act (ADEA), a plaintiff pursuing a disparate treatment claim for age discrimination must prove, by a preponderance of the evidence, that the employee would not have suffered an adverse employment action “but for” his age. The Court held that the text of the ADEA did not authorize “mixed motives” claims, and that the burden of persuasion does not shift to the employer, even when there is evidence that the plaintiff’s age was a motivating factor in the adverse decision.

In response, lawmakers introduced legislation in the House and Senate, including H.R. 3721 and S. 1756, which would effectively overturn Gross. Legislators note that Gross imposes a higher burden for age discrimination plaintiffs than plaintiffs suing under Title VII or the Americans with Disabilities Act. If passed, POWADA would standardize the burdens of production and proof in all employment discrimination cases. Under POWADA, an age discrimination plaintiff -- like a Title VII plaintiff -- could prevail by proving either that an impermissible factor motivated the adverse action or practice complained of, even if other factors also motivated the action or practice; or by proving the action or practice would not have occurred in the absence of an impermissible factor.

Congressman Jerrold Nadler (D-NY), who chaired the hearings on H.R. 3721 in June, stated that Gross “creates substantially different standards across and between federal civil rights laws, thus undermining their predictability, scope, and effectiveness.” According to Congressman Nadler, “H.R. 3721 seeks to restore the pre-Gross standard for proving age discrimination and the longstanding presumption that Title VII’s framework and precedent applies to other federal discrimination and retaliation laws. We should act promptly to correct the Gross decision before more damage is done.”

Congressman George Miller (D-CA), the Chairman of the Committee on Education and Labor who sponsored H.R. 3721, likewise notes that POWADA will “make the standard for proving age discrimination the same as those alleging race, national origin or religious discrimination,” and that Congress intends to “overturn the Supreme Court’s decision [in Gross] and ensure that workers with a legitimate claim will have their day in court.” Congressman Miller introduced POWADA on October 6, 2009. When contacted, representatives for Congressman Miller would not predict when a committee report may be issued on H.R. 3721, or when the bill might reach the House floor for a vote. Bills start in House committees and enter Senate committees only after being passed by the House and received by the Senate. Many bills are never referred to a committee at all, and most bills never receive committee consideration or are reported out. POWADA remains in the first step of the legislative process, but it appears to have wide support and has been referred to numerous committees, including the House Subcommittee on Education and Labor and the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties.