[House Report 117-63]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 117-63
======================================================================
PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT OF 2021
_______
June 17, 2021.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2062]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 2062) 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, having considered the same,
reports favorably thereon with an amendment and recommends that
the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 4
Committee Action................................................. 5
Committee Views.................................................. 8
Section-by-Section Analysis...................................... 20
Explanation of Amendments........................................ 21
Application of Law to the Legislative Branch..................... 21
Unfunded Mandate Statement....................................... 22
Earmark Statement................................................ 22
Roll Call Votes.................................................. 22
Statement of Performance Goals and Objectives.................... 29
Duplication of Federal Programs.................................. 29
Hearings......................................................... 29
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 29
New Budget Authority and CBO Cost Estimate....................... 29
Committee Cost Estimate.......................................... 31
Changes in Existing Law Made by the Bill, as Reported............ 31
Minority Views................................................... 65
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting Older Workers Against
Discrimination Act of 2021''.
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.
Purpose and Summary
Congress enacted the Age Discrimination in Employment Act
(ADEA) in 1967 to prohibit age discrimination in the
workplace.\1\ The ADEA was an integral part of civil rights
legislation enacted during the 1960s to ensure equal
opportunity in the workplace, along with the Equal Pay Act of
1963\2\ and Title VII of the Civil Rights Act of 1964 (Title
VII).\3\
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\1\Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec.
621 (2021).
\2\Equal Pay Act of 1963, 29 U.S.C. Sec. 206 (2021).
\3\Civil Rights Act of 1964, 2 U.S.C. Sec. 1311 (2021).
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Protections for older workers were eroded by the Supreme
Court's 2009 decision in Gross v. FBL Financial Services, Inc.
(Gross) which imposed a higher burden of proof for age
discrimination then previously required. This 5-4 decision
overturned precedent by requiring individuals to prove that age
discrimination was the decisive and determinative cause for the
employer's adverse action rather than just a motivating factor
in the employer's adverse action.\4\
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\4\Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009).
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The purpose of H.R. 2062, the Protecting Older Workers
Against Discrimination Act of 2021 (POWADA or the Act), is to
rectify the harms caused by the Gross decision and restore the
congressional intent underpinning the ADEA\5\ to eliminate age
as a factor in employment decisions: to promote the employment
of older persons based on their ability rather than age; to
prohibit arbitrary age discrimination in employment; and, to
help employers and workers find ways of meeting problems
arising from the impact of age on employment. By reinstating
the mixed-motive evidentiary threshold applied to age
discrimination claims prior to Gross, this legislation returns
to the decades old legal precedent in age discrimination
cases--where the complaining party need only prove age was one
of a number of factors behind the employment decision rather
than age being the ``but-for'' or sole motivating cause of the
employer's adverse action under the ADEA.\6\ Further, this
legislation clarifies that complaining parties may rely on any
type of admissible evidence to establish their claims of an
unlawful employment practice. Thus, POWADA aligns with the same
evidentiary standard that is used in sex and race
discrimination cases under Title VII, so that all
discrimination claims fall under the same burden of proof
standard.
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\5\Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec.
623.
\6\The Protecting Older Workers Against Discrimination Act, Before
the Subcomm. on Health, Education, Labor, and Pensions of the H. Comm.
on Educ. and Labor, 111th Cong. (2010) (written testimony of Prof.
Michael Foreman, Director, Civil Rights Appellate Clinic, Pennsylvania
State University Dickinson School of Law).
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For older Americans, age discrimination is a significant
barrier to job opportunities. When older workers lose their
jobs, they are far more likely than other workers to join the
ranks of the long-term unemployed. Therefore, this legislation
is needed to re-establish vital protections for older workers.
Finally, courts have expanded the Gross ``but-for''
interpretation to the Americans with Disabilities Act of 1990
(ADA), the Rehabilitation Act of 1973 (Rehabilitation Act), and
employer retaliation cases arising under Title VII.\7\ POWADA
extends the mixed-motive evidentiary standards to all three
statutes, ensuring that workers filing ADA, Rehabilitation Act,
and Title VII anti-retaliation claims are afforded similar
protection under the Act.
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\7\See infra notes 70-77 and accompanying text.
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Committee Action
111TH CONGRESS
On October 6, 2009, Senator Tom Harkin (D-IA) introduced S.
1756, the Protecting Older Workers Against Discrimination Act.
The bill was referred to the Senate Committee on Health,
Education, Labor, and Pensions (Senate HELP Committee). On May
6, 2010, the Senate HELP Committee held a hearing entitled
``Ensuring Fairness for Older Workers.'' The Committee heard
testimony to examine the employment discrimination against
older workers, and the need to enact protective legislation in
the wake of the decision in Gross v. FBL Financial Services,
Inc.\8\ Witnesses included Jacqueline Berrien, Chair of the
Equal Employment Opportunity Commission; Jack Gross, plaintiff
in Gross v. FBL Financial Services, Inc.; Helen Norton,
Professor at the University of Colorado Law School; Gail
Aldrich, Member of the AARP Board of Directors; and Eric
Dreiband, Partner at Jones Day. No further action was taken.
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\8\Gross, 557 U.S. at 167.
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Representative George Miller (D-CA-7) introduced a
companion measure, H.R. 3721, on October 6, 2009. The bill was
referred to the House Committee on Education and Labor, where
it was further referred to the Subcommittee on Health,
Education, Labor, and Pensions, which held a hearing on May 5,
2010, entitled ``H.R. 3721, The Protecting Older Workers
Against Discrimination Act.'' The Committee heard testimony on
the impact of the Gross decision on age discrimination claims
and the practical application of H.R. 3721 as a potential
remedy. Witnesses included Jack Gross, plaintiff in Gross v.
FBL Financial Services, Inc.; Gail Aldrich, Member of the AARP
Board of Directors; Eric Dreiband, Partner at Jones Day; and
Professor Michael Foreman, Director of the Civil Rights
Appellate Clinic at the Pennsylvania State University. No
further action was taken.
The bill was also referred to House Committee on the
Judiciary where it was subsequently referred to the
Subcommittee on Constitution, Civil Rights, and Civil
Liberties. On June 10, 2010, the Subcommittee held a hearing
entitled ``Protecting Older Workers Against Discrimination
Act.'' The Committee heard testimony to examine if H.R. 3721
appropriately course corrects Gross. Witnesses included Jocelyn
Samuels, Senior Counsel at the U.S. Department of Justice Civil
Rights Division; Jack Gross, plaintiff in Gross v. FBL
Financial Services, Inc.; Eric Dreiband, Partner at Jones Day;
and Helen Norton, Associate Professor at the University of
Colorado Law School. No further action was taken.
112TH CONGRESS
On March 13, 2012, Senator Harkin introduced S. 2189, the
Protecting Older Workers Against Discrimination Act. The bill
was referred to the Senate HELP Committee. No further action
was taken.
113TH CONGRESS
On July 30, 2013, Senator Harkin and Representative Miller
introduced the Protecting Older Workers Against Discrimination
Act, S. 1391 and H.R. 2853 respectively. S. 1391 was referred
to the Senate HELP Committee. H.R. 2853 was referred to the
House Committee on Education and the Workforce, where it was
subsequently referred to the Subcommittee on Workforce
Protections. No further action was taken on either bill.
114TH CONGRESS
On October 8, 2015, Senator Mark Steven Kirk (R-IL)
introduced S. 2180, the Protecting Older Workers Against
Discrimination Act. The bill was referred to the Senate HELP
Committee.
On June 24, 2016, Representative Robert C. ``Bobby'' Scott
(D-VA-3) introduced an identical bill, H.R. 5574, the
Protecting Older Workers Against Discrimination Act. The bill
was referred to the House Committee on Education and the
Workforce, where it was subsequently referred to the
Subcommittee on Workforce Protections.
No further action was taken on either bill.
115TH CONGRESS
On February 27, 2017, Senator Robert P. Casey Jr. (D-PA)
introduced S. 443, the Protecting Older Workers Against
Discrimination Act. The bill was referred to the Senate HELP
Committee.
On May 25, 2017, Representative Scott (VA) introduced an
identical bill, H.R. 2650, the Protecting Older Workers Against
Discrimination Act. The bill was referred to the House
Committee on Education and the Workforce.
No further action was taken on either bill.
116TH CONGRESS
On February 14, 2019, Senator Casey introduced S. 485, the
Protecting Older Workers Against Discrimination Act. The bill
was referred to the Senate HELP Committee.
On February 14, 2019, Representative Scott (VA), introduced
an identical bill, H.R. 1230, the Protecting Older Workers
Against Discrimination Act. The bill was referred to the House
Committee on Education and Labor (the Committee).
On May 21, 2019, the Committee held a hearing entitled
``Eliminating Barriers to Employment: Opening Doors to
Opportunity'' during which H.R. 1230 was considered, among
other bills. The Committee heard testimony relevant to H.R.
1230 from Laurie McCann, Senior Attorney at AARP Foundation,
about employment discrimination on the basis of age; how the
Gross v. FBL Financial Services, Inc.\9\ decision made it more
difficult to prove age discrimination under ADEA; and remedies
that would provide more effective relief to victims of
discrimination on the basis of age, including the provisions
included in H.R. 1230.
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\9\Id.
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On June 11, 2019, the Committee marked up H.R. 1230. The
Committee adopted an Amendment in the Nature of a Substitute
(ANS) offered by Chairman Scott and reported the bill favorably
to the House of Representatives by a vote of 27 ayes and 18
nays.
On January 15, 2020, H.R. 1230 passed on the House Floor by
a vote of 261 ayes and 155 nays.
117TH CONGRESS
On March 18, 2020, Representative Scott (VA) introduced
H.R. 2062, the Protecting Older Workers Against Discrimination
Act. The bill was referred to the House Committee on Education
and Labor (the Committee).
On March 22, 2021, Senator Casey introduced an identical
companion bill in the Senate, S. 880, the Protecting Older
Workers Against Discrimination Act. The bill was referred to
the Senate HELP Committee.
On March 18, 2021, the Committee's Subcommittees on Civil
Rights and Human Services and Workforce Protections held a
Joint Subcommittee Hearing entitled ``Fighting for Fairness:
Examining Legislation to Confront Workplace Discrimination''
during which H.R. 2062 was considered, among other bills.
The Joint Subcommittee heard testimony relevant to H.R.
2062 from Laurie McCann, Senior Attorney at AARP Foundation,
about the impact of the COVID-19 pandemic on employment
discrimination on the basis of age; how the Gross v. FBL
Financial Services, Inc.\10\ decision made it more difficult to
prove age discrimination under ADEA; and how H.R. 2062 would
provide more effective relief to victims of discrimination on
the basis of age as well as ensure workers are adequately
protected in Title VII anti-retaliation actions.
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\10\Gross, 557 U.S. at 167.
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On April 29th, 2021, the Senate Special Committee on Aging
held a hearing entitled ``A Changing Workforce: Supporting
Older Workers Amid the COVID-19 Pandemic and Beyond,'' which
included testimony on S. 880. Notable testimony was given by
Ramsey Alwin, President and CEO at the National Council on
Aging, discussing the need for POWADA, as well as structural
changes in workforce participation among older workers in the
wake of the COVID-19 pandemic and the impact of age
discrimination on older workers returning to work.
On May 26, 2021, the Committee marked up H.R. 2062. The
Committee adopted an Amendment in the Nature of a Substitute
(ANS) offered by Representative Suzanne Bonamici (D-OR-1) and
reported the bill favorably to the House of Representatives by
a vote of 29 ayes and 18 nays.
The ANS incorporated the provisions of H.R. 2062, as
introduced, with the following modification:
Changed the title of the bill from
``Protecting Older Workers Against Discrimination Act''
to ``Protecting Older Workers Against Discrimination
Act of 2021''.
Five amendments to the ANS were offered and voted on
separately:
Representative Virginia Foxx (R-NC-5), the
Ranking Minority Member of the Committee, offered an
amendment to strike the provisions of H.R. 2062
addressing retaliation claims. The amendment failed by
a vote of 19 ayes and 28 nays.
Representative Rick Allen (R-GA-12) offered
an amendment requiring a GAO study to determine whether
the Court's decisions in Gross and University of Texas
Southwest Medical Center v. Nassar\11\ have (1)
discouraged older workers from filing age
discrimination and Title VII anti-retaliation charges
with Equal Employment Opportunity Commission (EEOC);
and (2) from filing age discrimination and Title VII
cases; and (3) the success rates of age discrimination
and Title VII cases have decreased since the Gross and
Nassar decisions. The Act would only go into effect if
the GAO study found these negative impacts resulting
from the Gross and Nassar decisions. The amendment
failed by a vote of 19 ayes and 27 nays.
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\11\Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013).
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Representative Bob Good (R-VA-5) offered an
amendment to insert a finding that nearly all
successful plaintiffs would not receive damages, other
payments, or reinstatement, but that attorneys' fees
and costs may be awarded and that plaintiffs may owe
income tax on those awards. The amendment failed by a
vote of 19 ayes and 28 nays.
Representative Lisa McClain (R-MI-10)
offered an amendment that a plaintiff may not rely
solely on an employer's engagement in an interactive
process with an employee or job applicant under the ADA
in order to demonstrate a discriminatory practice under
the bill. The amendment failed by a vote of 19 ayes and
28 nays.
Representative Elise Stefanik (R-NY-21)
offered an amendment to clarify that a preponderance of
the evidence standard is required to prove age
discrimination and disability claims. The amendment
failed by a vote of 19 ayes and 28 nays.
Committee Views
INTRODUCTION
Age discrimination is a pervasive challenge facing older
workers. Approximately 61 percent of older workers have either
seen or experienced age discrimination in the workplace.\12\ In
2020, the EEOC received 14,000 age discrimination complaints--
accounting for 21 percent of all discrimination cases
filed,\13\ and while most older workers say they have seen or
experienced age discrimination, only 3 percent report having
made a formal complaint.\14\
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\12\Rebecca Perron, The Value of Experience Study, AARP (July
2018), https://www.aarp.org/research/topics/economics/info-2018/
multicultural-work-jobs/?CMP=RDRCT-PRI-OTHER-WORKJOBS-052118.html.
\13\Press Release, U.S. Equal Emp't Opportunity Comm'n, EEOC
Releases Fiscal Year 2020 Enforcement and Litigation Data (Feb. 26,
2021), https://www.eeoc.gov/newsroom/eeoc-releases-fiscal-year-2020-
enforcement-and-litigation-data.
\14\Victoria A. Lipnic, U.S. Equal Emp't Opportunity Comm'n, The
State of Age Discrimination and Older Workers in the U.S. 50 Years
After the Age Discrimination in Employment Act (ADEA) (2018), https://
www.eeoc.gov/eeoc/history/adea50th/report.cfm.
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Age discrimination continues to be a ``significant and
costly problem to workers, their families, and the
economy.''\15\ These trends have a profound impact on the
economic security of older workers and their families as well
as the U.S. economy. The cost of age discrimination amounted to
$850 billion in lost GDP in the year 2018 alone, according to a
report issued in 2020 by the AARP and the Economist
Intelligence Unit.\16\ As the overall workforce ages in the
coming decades, the economic contribution of the 50-plus
population will triple--meaning age discrimination could cost
as much as $3.9 trillion by the year 2050.\17\
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\15\ Id.
\16\AARP & The Economist, The Economic Impact of Age
Discrimination: How discriminating against older workers could cost the
U.S. economy $850 billion 3 (2020) [hereinafter AARP & The Economist],
accessible at https://www.aarp.org/content/dam/aarp/research/
surveys_statistics/econ/2020/impact-of-age-
discrimination.doi.10.264192Fint.00042.003.pdf.
\17\Id.
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Despite these costs, few employers are taking steps that
adequately accommodate older workers. More than half of older
U.S. workers are pushed out of longtime jobs before they choose
to retire, suffering financial damage that is often
irreversible.\18\ When older workers lose their jobs, they are
far more likely than other workers to join the ranks of the
long-term unemployed and discrimination appears to be a
significant factor.\19\ This friction in workforce
participation will only compound, as the number of individuals
actively looking for work is expected to increase fastest for
the oldest segments of the population through 2024--most
notably, people ages 65 and older.\20\
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\18\Peter Gosselin, If You're Over 50, Chances are the Decision to
Leave a Job Won't be Yours, ProPublica (Dec. 28, 2018, 5:00 AM),
https://www.propublica.org/article/older-workers-united-states-pushed-
out-of-work-forced-retirement.
\19\AARP & The Economist, supra note 16 at 9.
\20\Strong Labor Market is Not Bringing Unemployed Older Americans
Back to Work, The New School SCEPA (Nov. 2, 2018), https://
www.economicpolicyresearch.org/jobs-report/october-2018-unemployment-
report-for-workers-over-55.
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These challenges are exacerbated by the COVID-19 pandemic,
which is disproportionately impacting older workers and
amplifying age discrimination.\21\ According to the U.S. Bureau
of Labor Statistics (BLS), 3.4 million people aged 45 and older
were unemployed as of May, 2021.\22\ For the first time in
almost fifty years, older workers lost their jobs faster, and
are returning to work slower, than mid-career workers.\23\ Loss
of income during the recession is also disproportionately
burdening older workers; only one in every ten older workers
displaced from a job will ever again earn as much as they did
before an employment setback.\24\ As employers continue to
solicit age information in job applications, perceived age
discrimination will discourage as many as 3 in 4 older workers
seeking to find post-recession employment.\25\
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\21\Fighting for Fairness: Examining Legislation to Confront
Workplace Discrimination: Hearing Before the Joint Subcomm's On Civil
Rights and Human Services and Workforce Protections of the H. Comm. on
Educ. and Labor, 117th Cong. (2021) (written statement of Laurie
McCann, Senior Attorney, AARP Foundation); Theresa Agovino, COVID-19
Deals a Dual Threat to Older Workers, Society for Human Resource
Management (July 18, 2020), https://www.shrm.org/hr-today/news/all-
things-work/pages/covid-19-deals-a-dual-threat-to-older-workers.aspx.
\22\U.S. Bureau of Lab. Stat., The Employment Situation--May 2021,
22 (2021), https://www.bls.gov/news.release/pdf/empsit.pdf. The
unemployment rate was 10.7% for ages 45 to 54 and 11.8% for ages 55 and
over. Id.
\23\A First in Nearly 50 Years, Older Workers Face Higher
Unemployment Than Mid-Career Workers, The New School SCEPA (Oct. 20,
2020), https://www.economicpolicyresearch.org/jobs-report/a-first-in-
nearly-50-years-older-workers-face-higher-unemployment-than-mid-career-
workers.
\24\Gosselin, supra note 18.
\25\Rebecca Perron, AARP, The Value of Experience: Age
Discrimination Against Older Workers Persists 8 (2018), https://
www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2018/
value-of-experience-age-discrimination-highlights.doi.10.26419-
2Fres.00177.002.pdf.
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POWADA is supported by organizations that represent
millions of workers nationwide including: AARP; AFL-CIO;
Alliance for Retired Americans; AMDA--The Society for Post-
Acute and Long-Term Care Medicine; American Postal Workers
Union Retirees Department; American Society on Aging;
Association for Gerontology and Human Development in
Historically Black Colleges and Universities; Association of
Jewish Aging Services; Asociacion Nacional Pro Personas
Mayores; Caring Across Generations; Center for Eldercare
Improvement, Altarum; The Gerontological Society of America;
Justice in Aging; LeadingAge; Medicare Rights Center; National
Active and Retired Federal Employees Association; National
Adult Day Services Association; National Alliance for
Caregiving; National Association of Area Agencies on Aging;
National Association of Nutrition and Aging Services Programs;
National Association of Social Workers; National Caucus and
Center on Black Aging; National Committee to Preserve Social
Security and Medicare; National Council on Aging; National
Indian Council on Aging; National Senior Corps Association;
Paralyzed Veterans of America; Pension Rights Center; Social
Security Works; and the Women's Institute for a Secure
Retirement.
HISTORY OF PROTECTIONS AGAINST AGE DISCRIMINATION IN THE UNITED STATES
Age discrimination is not new. Congress considered
expressly prohibiting age discrimination in employment as part
of the Equal Employment Opportunity Act of 1962 and Title VII
of the Civil Rights Act of 1964, but amendments to include age
as a protected class failed. Instead, as part of Title VII,
Congress directed then Secretary of Labor Willard Wirtz to make
a ``full and complete study of the factors which may tend to
result in discrimination in employment because of age.''\26\
That report became known as the ``Wirtz Report.''\27\
---------------------------------------------------------------------------
\26\U.S. Dep't of Labor, The Older American Worker: Age
Discrimination in Employment, Report of the Secretary of Labor Under
Section 715 of the Civil Rights Act of 1964 (1965) [hereinafter Wirtz
Report], https://www.eeoc.gov/eeoc/history/adea50th/wirtz_report.cfm.
\27\Lipnic, supra note 14.
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The Wirtz Report examined age discrimination in the
workplace during the 1960s. The report concluded that
``employers believed age impacted job performance and
ability,'' and that employers routinely refused to hire workers
in their 40's, 50's and 60's ``based upon false beliefs and
unfounded assumptions,''\28\ or the false pretense that higher
age resulted in poorer job performance. The Wirtz Report
distinguished age discrimination from discrimination based on
``race, color, religion or national origin,''\29\ finding that
``discrimination based on age was different because it did not
derive from historical origins or feelings of dislike or
intolerance that originated from outside the workplace,''\30\
and therefore recommended against adding age to Title VII of
the Civil Rights Act of 1964.\31\ Instead of amending Title
VII, President Lyndon Johnson in 1967 urged Congress to take
action to protect ``[h]undreds of thousands not yet old, not
yet voluntarily retired, who find themselves jobless because of
arbitrary age discrimination.''\32\ That year, Congress enacted
the ADEA,\33\ which protects employees as well as job
applicants over the age of 40 from age discrimination in
hiring, while on the job, and in termination.\34\ Among its
core provisions, the ADEA states that it shall be unlawful for
an employer--
---------------------------------------------------------------------------
\28\Id.
\29\Wirtz Report, supra note 26.
\30\Cathy Ventrell-Monsees, It's Unlawful Age Discrimination--Not
the ``Natural Order'' of the Workplace!, 40 Berkeley J. Emp. & Lab. L.
91, 96 (2010).
\31\Lipnic, supra note 14.
\32\President Lyndon B. Johnson, Special Message to the Congress
Proposing Programs for Older Americans, The American Presidency Project
(Jan. 23, 1967), https://www.presidency.ucsb.edu/documents/special-
message-the-congress-proposing-programs-for-older-americans (proposing
several legislative measures including the ADEA).
\33\Age Discrimination in Employment Act of 1967, 29 U.S.C. Sec.
621 (2021).
\34\``The ADEA, enacted in 1967 as part of an ongoing congressional
effort to eradicate discrimination in the workplace, reflects a
societal condemnation of invidious bias in employment decisions. The
ADEA is but part of a wider statutory scheme to protect employees in
the workplace nationwide. See Title VII of the Civil Rights Act of
1964.'' McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352, 357_58
(1995) (citations omitted).
(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's age;
(2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual's age; or
(3) to reduce the wage rate of any employee in order
to comply with this chapter.\35\
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\35\29 U.S.C. Sec. 621.
---------------------------------------------------------------------------
EROSION OF ANTIDISCRIMINATION PROTECTIONS FOR OLDER WORKERS
The ADEA prohibits adverse employment actions against
employees ``because of'' an individual's age. In interpreting
the ``because of'' causation standard, between 1989 and 2009
the courts applied the Price Waterhouse v. Hopkins\36\ Title
VII mixed-motive framework to claims of age discrimination, and
they explicitly rejected the ``but-for'' interpretation.\37\
Under a mixed-motive analysis, the plaintiff is required to
show that a protected characteristic was a motivating factor in
the employer's adverse action. The burden then shifts to the
employer to prove that it would have taken the same action
regardless of the protected characteristic. Alternatively, the
``but-for'' standard requires the plaintiff to show that the
adverse action would not have occurred ``but-for'' the
employee's age.
---------------------------------------------------------------------------
\36\Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989).
\37\Gross, 557 U.S. at 176.
---------------------------------------------------------------------------
In Price Waterhouse,\38\ the Supreme Court noted that the
phrase ``because of'' contained within the statutory language
of the ADEA\39\ was derived from Title VII,\40\ and that
``because of'' under Title VII translates into a motivating
factor of causation.\41\ Price Waterhouse established that a
plaintiff satisfies the burden of persuasion by demonstrating
that the protected characteristic (age) ``played a motivating
part in an employment decision.''\42\ Once the plaintiff makes
this showing, the burden then shifts to the employer to prove
that the plaintiff's age was not the ``but-for'' cause of the
adverse employment decision.\43\ Post Price Waterhouse\44\
appellate courts universally applied ``motivating factor''
causation to disparate treatment claims under the ADEA.\45\
---------------------------------------------------------------------------
\38\Price Waterhouse, 490 U.S. at 239-241.
\39\29. U.S.C. Sec. 623(a)(1). (``[i]t shall be unlawful for an
employer . . . to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual . . . because of the
individuals age,'').
\40\Gross, 557 U.S. at 182-83 (Stevens, J., dissenting) (internal
quotations omitted).
\41\Price Waterhouse, 490 U.S. at 249.
\42\Id. at 240.
\43\Id. at 244-45.
\44\Id. at 228.
\45\Gross, 557 U.S. at 182-83 (Stevens, J., dissenting); see also
Rachid v. Jack in the Box, Inc., 376 F.3d 305, 311 (5th Cir. 2004);
Tratree v. BP N. Am. Pipelines, Inc., 277 Fed. App'x 390, 393-95 (5th
Cir. 2008) (following Rachid in ADEA case, noting that the standards of
proof for claims of discrimination under the ADEA and Title VII were
treated identically in the Fifth Circuit)
---------------------------------------------------------------------------
Twenty years after Price Waterhouse,\46\ protections for
older workers were eroded by the Supreme Court's 2009 decision
in Gross,\47\ which threw out the mixed-motive framework for
age discrimination cases established in Price Waterhouse\48\
and all successive precedent. In the Gross case, Jack Gross,
then 54, brought suit for age discrimination. After working for
more than 30 years and steadily rising within the company,
Jack's employer reorganized and underwent a merger. As a
result, many older workers were offered a buy-out, and those
who did not take the buy-out were demoted and their prior
duties and titles assigned to younger workers. Jack brought
suit against his employer and won, including an award of
$46,945 in lost compensation, relying on the mixed-motive
framework.\49\ However, on appeal, the employer prevailed by
arguing that mixed-motive discrimination must be proven by
direct evidence, not circumstantial evidence.\50\ The Supreme
Court agreed to hear the case on that evidentiary question.
However, the Court issued its decision on a question that was
never presented to the Court or briefed by the parties: it
ruled that older workers may not bring mixed-motive claims
under the ADEA. It was no longer legally sufficient to prove
that age discrimination tainted the employer's decision, but
that older workers must prove that age discrimination was the
decisive, determinative, ``but-for'' cause for the employer's
conduct.\51\ Jack Gross then lost his age discrimination case
after a retrial, wherein the jury was instructed to use the new
``but-for'' framework to review his case.\52\
---------------------------------------------------------------------------
\46\Price Waterhouse, 490 U.S. at 228.
\47\Gross, 557 U.S. at 167.
\48\Price Waterhouse, 490 U.S. at 249-253.
\49\Gross v. FBL Fin. Servs., Inc., 526 F.3d 356, 358 (8th Cir.
2008).
\50\Id. at 361.
\51\Gross, 557 U.S. at 176.
\52\Gross v. FBL Fin. Servs., Inc., 489 F. App'x 971, 972-73 (8th
Cir. 2012).
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The Gross Court discarded decades of legal precedent that
interpreted a parallel construction of the ADEA with Title VII.
Instead, the Court held that Congress' failure to amend any
statute other than Title VII of the Civil Rights Act of
1964\53\ (with respect to discrimination claims) as part of the
Civil Rights Act of 1991\54\ meant that Congress intended to
disallow mixed-motive claims under other statutes. The Court
concluded that Congress could have similarly and simultaneously
amended the ADEA to include the mixed-motive test, but it
intentionally chose not to do so. Drawing a negative inference
from Congress' omission, the Court reasoned that if the ADEA
was not amended to include motivating factor discrimination,
then Congress must have intended to exclude motivating factor
discrimination under the ADEA. This 5-4 decision diluted
protections under the ADEA by requiring plaintiffs attempting
to prove age discrimination to demonstrate that age was a
decisive and determinative cause for the employer's adverse
action.
---------------------------------------------------------------------------
\53\Civil Rights Act of 1964, 2 U.S.C. Sec. 1311 (2021).
\54\Civil Rights Act of 1991, 42 U.S.C. Sec. 1981 (2021).
---------------------------------------------------------------------------
Congress enacted section 107 of the Civil Rights Act of
1991 (adding section 703(m) to the Civil Rights Act of
1964)\55\ to allow for an unlawful employment practice to be
established when a protected characteristic was a motivating
factor for an employment practice, even though other factors
also motivated the practice (also known as a mixed-motive
claim).\56\ This mixed-motive framework made it easier for
employees to prove discrimination and more difficult for
employers to conceal discriminatory motives behind a facially
neutral pretext. Prior to Gross, Title VII's motivating factor
standard had been applied to ADEA. As Justice Stevens noted in
his dissent in Gross, ``the relevant language in the two
statutes is identical, and [the Court] has long recognized . .
. Title VII's language apply with equal force in the context of
age discrimination, for the substantive provisions of the ADEA
were derived in haec verba from Title VII.''\57\ Justice
Stevens further pointed out that, ``ADEA standards are
generally understood to conform to Title VII standards.''\58\
---------------------------------------------------------------------------
\55\42 U.S.C. Sec. 1981.
\56\42 U.S.C. Sec. 1981.
\57\Gross, 557 U.S. at 183 (Stevens, J., dissenting) (internal
quotations omitted).
\58\Id. at 185 (Stevens, J., dissenting).
---------------------------------------------------------------------------
Experts, including Laurie McCann, a Senior Attorney with
the AARP Foundation, have testified before the Committee
expressing concerns about the lack of legal protections for
older workers due to the Court's failure to interpret the ADEA
as a remedial civil rights statute, ultimately eroding the
ADEA's protections.\59\ Specifically, Ms. McCann points to
Gross as an example of the Court misinterpreting ADEA and
severing the ADEA from its ties to Title VII. In her written
testimony to the Committee on May 21, 2019, Ms. McCann stated:
---------------------------------------------------------------------------
\59\Eliminating Barriers to Employment: Opening Doors to
Opportunity Before the H. Comm. on Educ. and Labor, 116th Cong. (2019)
(written testimony of Laurie McCann, Senior Attorney, AARP).
[T]he ADEA's language was borrowed directly from
Title VII, prohibiting discrimination `because of' age.
Thus, for decades, the ADEA was interpreted in concert
and consistently with Title VII. The tradition and
precedent of parallel construction was so strong that,
when the Supreme Court recognized a ``mixed-motive''
framework for proving discrimination under Title VII in
the Price Waterhouse v. Hopkins case in 1989, and after
Congress codified that framework in the Civil Rights
Act of 1991, courts `uniformly' interpreted the ADEA to
permit a mixed-motive cause of action.'' . . . ``In
Gross, the Court ruled that older workers may not bring
mixed-motive claims under the ADEA. The Court discarded
decades of precedent embracing parallel construction of
the ADEA with Title VII and flipped it on its
head''\60\
---------------------------------------------------------------------------
\60\Id. at 4-5.
In the 111th Congress, Jocelyn Samuels, then-Senior
Counselor to the Assistant Attorney General for Civil Rights
for the Department of Justice, testified before the House
Judiciary Committee's Subcommittee on the Constitution, Civil
Rights, and Civil Liberties. In her June 10, 2010, testimony,
---------------------------------------------------------------------------
Ms. Samuels stated:
[T]he Gross decision reduces the protections
available to age discrimination plaintiffs. They are
now subject to a new burden that they had never had to
bear under all of the precedent that pre-dated the
Gross decision. Namely the obligation to prove that age
is a ``but for'' cause of discrimination. That makes it
harder for plaintiffs to prevail in cases even in which
employers admit that they have relied on age
discrimination and reduces court's power to enjoin age
discrimination in the future. That, of course, also
reduces the deterrent effect of the law. In addition,
the fact that other courts have extended Gross to laws
like the Americans With Disabilities Act or the Jury
Systems Improvement Act, suggests that under those
laws, protections for plaintiffs that Congress intended
to protect will be similarly reduced.\61\
---------------------------------------------------------------------------
\61\Subcommittee on the Constitution, Civil Rights, and Civil
Liberties of the H. Comm. on the Judiciary, Protecting Older Workers
Against Discrimination Act, YouTube (June 10, 2010), https://
www.youtube.com/watch?v=XTKzNyGJn_k (see video pin cite 14:58:00).
Also, in the 111th Congress, the Senate HELP Committee held
a hearing on the Protecting Older Workers Against
Discrimination Act. Jacqueline Berrien, the former Chair of the
---------------------------------------------------------------------------
EEOC, testified on May 6, 2010, that--
[N]othing in the legislative history or the statutory
language of the age-discrimination act suggests that
this Congress intended to subject victims of age
discrimination to a more stringent standard than
victims of the types of discrimination prohibited by
title VII. The case is causing concrete hardships for
workers.\62\
---------------------------------------------------------------------------
\62\Ensuring Fairness for Older Workers Before the Senate Committee
on Health, Education, Labor and Pensions, 111th Cong. (2010) available
at https://www.govinfo.gov/content/pkg/CHRG-111shrg56416/html/CHRG-
111shrg56416.htm (citing transcript of oral testimony of Jacqueline
Berrien, Chair, Equal Opportunity Employment Commission).
Thus, while individuals with race or sex discrimination
claims under Title VII can prove unlawful disparate treatment
under a ``motivating factor'' standard, victims of age
discrimination must prove a higher ``but-for'' standard.''\63\
In this way, older workers face a higher bar to prove
discrimination than other protected classes.
---------------------------------------------------------------------------
\63\Lipnic, supra note 14 (see Appendix A).
---------------------------------------------------------------------------
Several courts have subsequently applied the Gross decision
to other civil rights statutes. As Ms. McCann stated in her May
21, 2019, testimony, ``the damage inflicted by Gross has not
stopped with the ADEA. The Supreme Court and lower courts have
extended the `negative inference' reasoning of Gross to other
civil rights laws.''\64\ In Nassar,\65\ the Supreme Court
relied heavily on Gross to find that mixed-motive causation did
not apply to claims of retaliation under Title VII. Similar to
Gross, plaintiff Dr. Naiel Nassar won his constructive
discharge and retaliation claims at trial using the mixed-
motive framework.\66\ Dr. Nassar was initially awarded $3.4
million in damages for these claims.\67\ In another 5-4
decision of the Supreme Court, the majority ruled that because
the section of Title VII prohibiting retaliation did not
contain language permitting mixed-motive causation, the statute
had to be interpreted according to its plain language
(interpreted as requiring but-for causation).\68\ The but-for
framework overturned, again, a jury decision finding an
employer had violated federal employment discrimination laws.
---------------------------------------------------------------------------
\64\Eliminating Barriers to Employment: Opening Doors to
Opportunity Before the H. Comm. on Educ. and Labor, 116th Cong. (2019)
(written testimony of Laurie McCann, Senior Attorney, AARP, at 7).
\65\Nassar, 570 US. at 345-354.
\66\Id. at 345.
\67\Id.
\68\Id. at 362-63.
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Circuit and district courts have extended the Gross and
Nassar holdings to cases alleging violations of the ADA and the
Family Medical Leave Act (FMLA).\69\ One district court judge
even read Gross and Nassar to bar the allegation of multiple
theories of discrimination in a complaint (alleging that the
employer discriminated on the basis of both disability and
age--because only one allegation can serve as the ``but-for''
cause of the discrimination).\70\ Recently, the Sixth Circuit
contrived a ``sole cause'' requirement in ADEA termination
cases, relying on Gross to conclude that such a standard
applies generally in claims under the statute.\71\
---------------------------------------------------------------------------
\69\Interestingly, district courts have not always chosen to read
the but-for standard into analogous state employment discrimination
laws. For example, in Burger, plaintiff prevailed under an Iowa age
discrimination statute even though the but-for test barred a claim
under the ADEA. See Burger v. K Mart Corp., No. 10-CV-3065-DEO, 2012 WL
2521114, at *5, *10 (N.D. Iowa June 28, 2012).
\70\Savage v. Secure First Credit Union, 107 F. Supp. 3d 1212,
1215-1216 (N.D. Ala. 2015).
\71\Pelcha v. MW Bancorp., Inc., 984 F.3d 1199, 1205 (6th Cir.
2021) (ADEA plaintiffs ``must show that age was the reason why they
were terminated, not that age was one of multiple reasons.'').
---------------------------------------------------------------------------
While the Supreme Court has yet to rule on the availability
of the mixed-motive framework under the ADA or the
Rehabilitation Act, the list of lower courts extending Gross
and Nassar to these two statutes is growing. As of June, 2021,
the Second\72\, Fourth\73\, Sixth\74\, Seventh\75\, Ninth\76\,
and Eleventh\77\ Circuits have ruled that disability
discrimination must be established under a ``but-for''
causation standard.\78\ For example, the Second Circuit held in
a Rehabilitation Act case (which incorporates the ADA causation
standard):
---------------------------------------------------------------------------
\72\Natofsky v. City of N.Y., 921 F.3d 337, 24-25 (2d Cir. 2019)
(holding because the ADA does not have a provision like Title VII's
Sec. 2000e-2(m) ``motivating factor'' standard, the ADA requires a
plaintiff alleging a claim of employment discrimination to prove the
discrimination was the but-for cause of any adverse employment action).
\73\Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 234 (4th
Cir. 2016) (Holding the Supreme Court's analysis in Gross v. FBL Fin.
Servs., 557 U.S. 167, 129 S. Ct. 2343 (2009) dictates what constitutes
or what serves to prove an ADA claim. The ADA's text does not provide
that a plaintiff may establish liability by showing that disability was
a motivating factor in an adverse employment decision, and therefore
Title VII's motivating factor standard cannot be read into ADA).
\74\Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 318 (6th
Cir. 2012) (following Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S.
Ct. 2343 (2009), the ADEA and the ADA bar discrimination ``because of''
an employee's age or disability, meaning they prohibit discrimination
only when it is a ``but-for'' cause of the employer's adverse decision.
\75\Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961-963
(7th Cir. 2010) (Holding that the ADA, like the ADEA, renders employers
liable for employment decisions made ``because of'' a person's
disability, and Gross v. FBL Fin. Servs., 557 U.S. 167, 129 S. Ct. 2343
(2009) construes ``because of'' to require a showing of but-for
causation. Thus, in the absence of a cross-reference to Title VII's
mixed-motive liability language or comparable stand-alone language in
the ADA itself, a plaintiff complaining of discriminatory discharge
under the ADA must show that his or her employer would not have fired
him but for his actual or perceived disability; proof of mixed motives
will not suffice).
\76\Murray v. Mayo Clinic, 934 F.3d 1101, 1105 (9th Cir. 2019)
(``We hold instead that an ADA discrimination plaintiff bringing a
claim under 42 U.S.C. Sec. 12112 must show that the adverse employment
action would not have occurred but for the disability.'').
\77\King v. HCA, 825 F. App'x. 733, 736 (11th Cir. 2020) (``For age
and disability discrimination, the plaintiff must prove that his age or
disability was a ``but-for'' cause of the adverse employment action--
meaning it had a `determinative influence on the outcome' of the
employer's decision.'').
\78\It's important to note that the ADA expressly incorporates by
reference Title VII's enforcement provisions, including the provision
containing the ``same decision'' defense. See 42 U.S.C. Sec. 12117(a).
Gross and Nassar dictate our decision here. The ADA
does not include a set of provisions like Title VII's
Sec. 2000e-2(m) (permitting a plaintiff to prove
employment discrimination by showing that
discrimination was a ``motivating factor'' in the
adverse decision) and Sec. 2000e-5(g)(2)(B) (limiting
the remedies available to plaintiffs who can show that
discrimination was a ``motivating factor'' but not a
but-for cause of the adverse decision). There is no
express instruction from Congress in the ADA that the
``motivating factor'' test applies. Moreover, when
Congress added Sec. 2000e-2(m) to Title VII, it
``contemporaneously amended'' the ADA but did not amend
it to include a ``motivating factor'' test. We,
therefore, join the conclusion reached by the Fourth,
Sixth, and Seventh Circuits that the ADA requires a
plaintiff alleging a claim of employment discrimination
to prove that discrimination was the but-for cause of
any adverse employment action.\79\
---------------------------------------------------------------------------
\79\Natofsky, 921 F.3d at 348.
Similarly, the harmful impact of the Nassar decision's
extension of the Gross ``but-for'' standard to Title VII
retaliation claims is demonstrated in cases in which the courts
considered the same cases pre- and post-Nassar. In the case of
Foster v. Univ. of Md. E. Shore,\80\ the plaintiff alleged that
after she complained of sexual harassment, her supervisor
stopped speaking to her, her hours were changed to her
disadvantage, her request for ``light duty'' work was denied
following an injury, her probationary period was extended by
six months, and she was denied training opportunities.\81\
Although the court initially denied the employer's motion for
summary judgment and held that the retaliation case could
proceed, the Supreme Court then issued the Nassar decision, and
so the employer asked for reconsideration.\82\ This time, the
Court granted summary judgment to the employer, stating that
although the facts may have been sufficient under the mixed-
motive framework, they no longer were sufficient under Nassar's
heightened but-for causation standard to establish that
plaintiff's protected activity was a ``determinative factor''
in defendant's adverse employment actions.\83\
---------------------------------------------------------------------------
\80\908 F. Supp. 2d 686 (D. Md. 2012).
\81\Id. at 694-97.
\82\Foster v. Univ. of Maryland E. Shore, No. CIV. TJS-10-1933,
2013 WL 5487813, at *1 (D. Md. Sept. 27, 2013), retaliation ruling
rev'd, 787 F.3d 243 (4th Cir. 2015).
\83\Id. at *3.
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Furthermore, in the case of Shumate v. Selma City Bd. of
Educ.,\84\ an elementary school cafeteria worker alleged that
she had been passed over for promotion due to having filed
earlier discrimination claims, and that those claims had been
discussed by the interview panel.\85\ The district court denied
the employer's motion for summary judgment on her retaliation
claim.\86\ As with Foster above, the Nassar decision was issued
a few months later and the employer moved for reconsideration
under the new causation standard.\87\ This time, stating that
``the Supreme Court has changed the rules since then,'' the
district court dismissed the worker's retaliation claim and
granted summary judgment to the employer.\88\
---------------------------------------------------------------------------
\84\928 F. Supp. 2d 1302, (S.D. Ala. 2013).
\85\Id. at 1310-12.
\86\Id. at 1318.
\87\Shumate v. Selma City Bd. of Educ., No. CIV. 11-00078-CG-M,
2013 WL 5758699, at *1 (S.D. Ala. Oct. 24, 2013), aff'd, 581 Fed. App'x
740, 743 (11th Cir. 2014).
\88\Id.
---------------------------------------------------------------------------
These cases illustrate that so long as employers can point
to any number of other lawful motives that also may have played
a role in an employment decision, these employers will not be
held accountable for including even manifest, proven age
discrimination in such decisions. As Ms. McCann stated in her
March 18, 2021 testimony, ``In this manner, the Gross decision
undermined Congress' entire purpose, mandate, and expected
enforcement of the ADEA--that discrimination play NO role in
employment decisions.''\89\ Ms. McCann continued:
---------------------------------------------------------------------------
\89\Fighting for Fairness: Examining Legislation to Confront
Workplace Discrimination: Hearing Before the Joint Subcomm's On Civil
Rights and Human Services and Workforce Protections of the H. Comm. on
Educ. and Labor, 117th Cong. (2021) (written statement of Laurie
McCann, Senior Attorney, AARP Foundation).
POWADA is bipartisan legislation that would fix the
enormous problem created by the Gross decision and its
progeny: an unreasonably high standard of proof that is
stacked against workers and backtracks on the promise
of the ADEA and other civil rights laws: equal
opportunity in employment.\90\
---------------------------------------------------------------------------
\90\Id.
Given the problems engendered by the extension of Gross to
other civil rights statutes, POWADA would clarify congressional
intent that no amount of unlawful discrimination in the
workplace is acceptable.
CONGRESSIONAL ACTION IS NECESSARY TO PROTECT WORKERS
For older jobseekers and workers, age discrimination
remains a barrier to both getting employed and staying
employed. According to an AARP survey released in 2019 (AARP
Survey), 3 in 5 older workers report they have seen or
experienced age discrimination on the job.\91\ A recent
Associated Press-NORC Center for Public Affairs Research survey
found that 91 percent of adults aged 45 and over thought that
older workers sometimes or often face age discrimination in the
workplace.\92\ This discrimination can occur during several
stages of employment.
---------------------------------------------------------------------------
\91\Rebecca Perron, AARP, The Value of Experience: Age
Discrimination Against Older Workers Persists 3 (2018), https://
www.aarp.org/content/dam/aarp/research/surveys_statistics/econ/2018/
value-of-experience-age-discrimination-highlights.doi.10.26419-
2Fres.00177.002.pdf [hereinafter AARP survey].
\92\Andrew Soergel, Older Americans More Likely to Cite Workplace
Discrimination, AP (May 23, 2019), https://apnews.com/
dc208bc4bbda4f7b9a13559df8b00e50.
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Hiring: Discrimination in hiring is quite
common. However, due in part to the increased use of
technology in the screening and hiring process, such
discrimination is largely opaque and difficult to
prove. Experimental studies have documented significant
discrimination against older applicants in the hiring
process, including a recent study that found employers
were less likely to call back older applicants.\93\ The
AARP Survey found that three-fourths of workers age 45
and older blame age discrimination for their lack of
confidence in finding a new job and 44 percent of older
jobseekers who had recently applied for a job were
asked for age-related information such as their date of
birth or date of graduation.\94\ Derogatory stereotypes
about older workers' physical and cognitive health,
personal ambition, and time flexibility are often
embedded in hiring decisions made by managers.\95\
---------------------------------------------------------------------------
\93\David Neumark et al., Federal Reserve Bank of San Francisco,
Age Discrimination and Hiring of Older Workers, 3, 4 (2017), https://
www.frbsf.org/economic-research/files/el2017-06.pdf [hereinafter
Neumark Study].
\94\AARP Survey, supra note 91.
\95\Seth D. Harris, Brookings, Increasing employment for older
workers with effective protections against employment discrimination
21-22 (2020), available at https://www.brookings.edu/research/
increasing-employment-for-older-workers-with-effective-protections-
against-employment-discrimination/.
---------------------------------------------------------------------------
Terms and Conditions of Employment: The
second most frequent complaint to the EEOC by older
workers involves the ``terms and conditions''' of
employment,\96\ such as being moved to a night shift or
given an unfair performance evaluation. Nearly one-
fourth of workers age 45 and older in the AARP Survey
said they had experienced negative comments about their
age from supervisors and coworkers.\97\
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\96\AARP calculation based on EEOC, Statutes by Issue (Charges
filed with EEOC): FY 2010-FY 2018, U.S. Equal Emp't Opportunity Comm'n,
https://www.eeoc.gov/eeoc/statistics/enforcement/statutes_by_issue.cfm;
Age Discrimination in Employment Act (Charges filed with EEOC): FY
1997-FY 2018, U.S. Equal Emp't Opportunity Comm'n, https://
www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.
\97\97 AARP Survey, supra note 91.
---------------------------------------------------------------------------
Termination: A study by the Urban Institute/
ProPublica found that 56 percent of all older workers
age 50+ are ``pushed out of longtime jobs before they
choose to retire'' and ``only one in 10 of these
workers ever again earns as much as they did before''
their involuntary separation.\98\ Among the age
discrimination charges filed with the EEOC, complaints
about discriminatory discharge constitute, by far, the
largest number of charges filed under the ADEA.\99\
---------------------------------------------------------------------------
\98\Gosselin, supra note 18.
\99\AARP calculation based on EEOC, supra note 97; Age
Discrimination in Employment Act (Charges filed with EEOC): FY 1997-FY
2018, U.S. Equal Emp't Opportunity Comm'n, https://www.eeoc.gov/eeoc/
statistics/enforcement/adea.cfm.
---------------------------------------------------------------------------
Age discrimination also includes intersectional impacts, as
it appears to be even more prevalent for women and workers of
color. In a 2017 experimental study using blind resumes, older
women encountered more age discrimination in hiring than
men.\100\ According to the AARP Survey, nearly two-thirds of
women and more than three-fourths of African American workers
age 45 and older say they've seen or experienced age
discrimination in the workplace.\101\ According to one study,
``half of African Americans feel unable to re-enter the
workforce because of their age. This is compared to 44% of
Hispanics, 43% of Asian Americans and 42% of Caucasians.''\102\
Over 9% of African Americans felt pressured into early
retirement because of their age, compared to 6.7% of other
races.\103\ Socio-economic class also interacts with age
discrimination; half of those with household income under
$50,000 feel they are unable to change jobs because of their
age--higher than any other income group.\104\
---------------------------------------------------------------------------
\100\Neumark Study, supra note 93. See also, AARP & The Economist,
supra note 19 at 9 (``Age discrimination manifests in longer spells of
unemployment for women.'').
\101\AARP Survey, supra note 91.
\102\AARP & The Economist, supra note 19 at 11.
\103\Id.
\104\Id.
---------------------------------------------------------------------------
During the COVID-19 pandemic, the decline in employment for
older Black, Hispanic, and Asian workers was twice that of
older white workers.\105\ Older women also experienced
significantly higher unemployment rates, particularly Black and
Hispanic women, forcing many to drop out of the labor force
entirely.\106\ Age discrimination will be a significant hurdle
for many of these displaced older workers who try to reenter
the job market. Since the start of the COVID-19 pandemic, more
than half of workers 55 and older have experienced long-term
unemployment of 27 weeks or more and at least 1 million of
these workers are likely to receive lower wages once re-
employed.\107\
---------------------------------------------------------------------------
\105\O. Davis, et. al., The Stalled Jobs Recovery Pushed 1.1
Million Older Workers Out of The Labor Force, The New School SCEPA
(Feb. 2021), https://www.economicpolicyresearch.org/jobs-report/the-
stalled-jobs-recovery-pushed-1-1-million-older-workers-out-of-the-
labor-force.
\106\A Changing Workforce: Supporting Older Workers Amid the COVID-
19 Pandemic and Beyond: Hearing before the Special Committee on Aging,
117th Cong. (2021) (written testimony of Ramsey Alwin, President & CEO,
National Council on Aging).
\107\Id.
---------------------------------------------------------------------------
CONCLUSION
Court decisions have created a legal hurdle in the ADEA
that makes it difficult for older workers to prevail in cases
of age discrimination in employment. POWADA would return the
legal standard to the pre-Gross evidentiary threshold applied
in ADEA discrimination claims by replacing the ``but-for'' test
the Court adopted in Gross with the mixed-motive test that
courts applied prior to 2009. POWADA also amends three other
laws--the anti-retaliation provisions in Title VII of the Civil
Rights Act of 1964, the ADA, and the Rehabilitation Act. POWADA
is necessary to ensure that older workers and disabled workers
have the same protections against discrimination as other
protected classes of workers. That is, they can establish an
unlawful employment practice when a protected characteristic
such as age or disability is proven to have been a motivating
factor for an employer's action, even though nondiscriminatory
motives may have also been involved.
As Chairman Scott noted at the May 21, 2019, hearing on
POWADA, ``[s]ince the 1960s, Congress has recognized the
Federal Government's responsibility to ensure that older
workers are not forced out of their jobs or denied work
opportunities because of their age.''\108\ It is time for
Congress to pass legislation that restores the same protections
to older workers that exist for other protected classes of
individuals, so that, as President Johnson stated in his
address to Congress, the many ``who are able and willing to
work'' do not ``suffer the bitter rebuff of arbitrary and
unjust job discrimination.''\109\
---------------------------------------------------------------------------
\108\H. Comm. on the Educ. and Labor, Markup on H.R. 1230--
Protecting Older Workers Against Discrimination Act, H.R. 1309-
Workplace violence Prevention for Health Care and Social Service
Workers Act, H.R. 397--Rehabilitation for Multiemployer Pensions Act,
YouTube (June 11, 2019), https://www.youtube.com/watch?v=8Y3gzTUIL7g
(see video pin cite 36:41:00) (opening statement of Chairman Robert C.
``Bobby'' Scott, Committee on Educ. and Labor).
\109\Johnson, supra note 32.
---------------------------------------------------------------------------
Section-by-Section Analysis
Sec. 1. Short title
This section specifies that the title of the bill may be
cited as the Protecting Older Workers Against Discrimination
Act of 2021.
Sec. 2. Standards of proof
In General
H.R. 2062, as reported, amends the Age Discrimination in
Employment Act of 1967 (ADEA), section 703 of the Civil Rights
Act of 1964, the Americans With Disabilities Act of 1990 (ADA),
and the Rehabilitation Act of 1973 to clarify that a
complaining party establishes an unlawful employment practice
when the complaining party demonstrates that age or any of the
other protected characteristics or protected activities were a
motivating factor for any unlawful employment practice. The
changes made by the bill apply to claims brought by employees
in the private, public, and not-for-profit sectors in the same
manner and to the same extent as they are covered under current
law.
Sec. 2(a). Age Discrimination in Employment Act of 1967
This section amends the ADEA to reinstate the availability
of the mixed-motive test that allows the complaining party to
establish their claim by demonstrating that the party's age or
participation in investigations, proceedings, or litigation
under the ADEA was a motivating factor for any alleged unlawful
employment practice. It also clarifies that complainants are
never required to prove that discrimination was the ``sole
cause'' for their adverse treatment on the job, and that any
type and form of evidence normally admissible in a court can be
used to establish a claim. This section also clarifies that
federal employees may also bring their claims using a mixed-
motive framework.
Under the mixed-motive framework, once a complaining party
establishes a prohibited motivation, the employer is permitted
to prove it would have taken the same action in the absence of
the impermissible factor.
If the employer proves that it would have taken the same
action in the absence of the impermissible factor, remedies are
limited to declaratory relief, injunctive relief, and
attorney's fees and costs directly related to pursuit of the
mixed-motive claim. Damages and orders requiring admission,
reinstatement, hiring, promotion, or payment are not available
in this situation. If the employer is unable to prove that it
would have taken the same action in absence of the
impermissible factor, the employee is entitled to back pay,
front pay or reinstatement, liquidated damages if the violation
was willful, and injunctive relief.
Sec. 2(b). Section 703 of the Civil Rights Act of 1964
This section amends section 703 of the Civil Rights Act of
1964 to add ``an activity protected by 704(a)'' to the list of
unlawful employment practices that may be proven using a
motivating factor framework, thereby reinstating the
availability of the mixed-motive test for charges of
retaliation under Title VII of the Civil Rights Act of 1964.
Under section 704(a) it is unlawful for an employer or job
training program to discriminate against an individual for
making charges, testifying, assisting, or participating in
enforcement proceedings regarding an unlawful employment
practice under Title VII of the Civil Rights Act of 1964.
Additionally, H.R. 2062 amends section 717 of the Civil Rights
Act of 1964 by specifying that the mixed-motive framework also
applies to unlawful employment cases involving federal
employees.
Sec. 2(c). Americans with Disabilities Act of 1990
This section amends the ADA to codify the availability of
the mixed-motive test that allows the complaining party to
establish a claim by demonstrating that disability or
participation in investigations, proceedings, or litigation
under subsection (a) or (b) of section 503 of the ADA was a
motivating factor for any alleged unlawful practice. It also
clarifies that complainants are never required to prove that
discrimination was the ``sole cause'' for their treatment on
the job, and that any type and form of evidence normally
admissible in a court can be used to establish a claim.
Under the mixed-motive framework, once a complaining party
establishes a prohibited motivation, the employer is allowed an
opportunity to mitigate damages by proving he would have taken
the same action in the absence of the impermissible factor.
If the employer proves that it would have taken the same
action in the absence of the impermissible factor, remedies are
limited to declaratory relief, injunctive relief, and
attorney's fees and costs directly related to pursuit of the
mixed-motive claim. Damages and orders requiring admission,
reinstatement, hiring, promotion, or payment are not available
in this situation.
If the employer is unable to prove that it would have taken
the same action in absence of the impermissible factor, the
employee is entitled to back pay, front pay or reinstatement,
liquidated damages if the violation was willful, and injunctive
relief.
Sec. 2(d). Rehabilitation Act of 1973
This section amends section 2(d) of the Rehabilitation Act
of 1973 to incorporate by reference the changes made to the ADA
in section 2(c) of the bill.
Sec. 3. Application
This section states that the Act applies to all claims
pending on or after the date of its enactment.
Sec 4. Severability
This section provides that if any provision, portion of a
provision, amendment, or their application is held invalid or
found to be unconstitutional, the remainder of this Act shall
not be affected.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the descriptive portions of this
report.
Application of Law to the Legislative Branch
Pursuant to section 102(b)(3) of the Congressional
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 2062, as
amended, applies to terms and conditions of employment within
the legislative branch because the four laws amended by H.R.
2062 (ADA, ADEA, the Rehabilitation Act, and Title VII of the
Civil Rights Act of 1964) are included within the list of laws
applicable to the legislative branch enumerated in section
102(a) of the Congressional Accountability Act of 1995.
Unfunded Mandate Statement
Pursuant to section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended
by section 101(a)(2) of the Unfunded Mandates Reform Act of
1995, Pub. L. 104-4), H.R. 2062, as amended, contains no
intergovernmental or private-sector mandates as defined by the
Unfunded Mandates Reform Act of 1995. Section 4 of the Unfunded
Mandates Reform Act of 1995 excludes from the application of
that act any legislative provisions that would establish or
enforce statutory rights prohibiting discrimination ``on the
basis of race, color, religion, sex, national origin, age,
handicap, or disability.'' CBO has determined that this
legislation falls within that exclusion because it would extend
protections against discrimination based on age and disability
in the workplace.
Earmark Statement
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2062 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
Roll Call Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 2062:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Statement of Performance Goals and Objectives
Pursuant to clause (3)(c)(4) of rule XIII of the Rules of
the House of Representatives, the goal of H.R. 2062 is to
improve the lives of American workers and job seekers by
restoring protections against age discrimination in the
workplace. The legislation achieves this by reinstating the
mixed-motive evidentiary threshold in age discrimination cases.
The legislation also extends the mixed-motive evidentiary
threshold to claims for disability discrimination under the ADA
and the Rehabilitation Act and to anti-retaliation claims under
Title VII of the Civil Rights Act of 1964.
Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H.R. 2062 establishes or reauthorizes a program of
the Federal Government known to be duplicative of another
federal program, a program that was included in any report from
the Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Hearings
Pursuant to clause 3(c)(6) of rule XIII of the Rules of the
House of Representatives, the Committee on Education and
Labor's Subcommittee on Civil Rights and Human Services and
Subcommittee on Workforce Protections held a joint hearing on
March 18, 2021, entitled ``Fighting for Fairness: Examining
Legislation to Confront Workplace Discrimination,'' which was
used to consider H.R. 2062, among other bills. Relevant to H.R.
2062, the Committee heard testimony from Laurie McCann, Senior
Attorney at AARP, Washington, DC. The Committee heard testimony
about and discussed employment discrimination on the basis of
age; how the Gross v. FBL Financial Services, Inc.\110\
decision made it more difficult to prove age discrimination
under ADEA; and remedies that would provide more effective
relief to victims of discrimination on the basis of age,
including the provisions included in H.R. 2062.
---------------------------------------------------------------------------
\110\Gross, 557 U.S. at 167.
---------------------------------------------------------------------------
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
New Budget Authority and CBO Cost Estimate
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a) of the
Congressional Budget and Impoundment Control Act of 1974, and
pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives and section 402 of the Congressional
Budget and Impoundment Control Act of 1974, the Committee has
received the following estimate for H.R. 2062 from the Director
of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 16, 2021.
Hon. Robert C. ``Bobby'' Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2062, the
Protecting Older Workers Against Discrimination Act of 2021.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Lindsay
Wylie.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 2062 would ease the standard of proof for age
discrimination claims as well as for certain other employment
discrimination and retaliation claims under Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act
of 1990, and the Rehabilitation Act of 1973. Using information
from the Equal Employment Opportunity Commission (EEOC), CBO
estimates that the bill would increase the caseload related to
age discrimination by 5 percent to 10 percent, or roughly 1,300
additional claims per year. CBO estimates that it would cost
about $3 million annually over the 2021-2026 period for the
agency to hire 20 additional personnel to handle the additional
workload and for the agency to provide additional training and
outreach; such spending would be subject to the availability of
appropriated funds. For fiscal year 2021, the Congress
appropriated $404 million for all of the EEOC's operations.
Enacting the bill could require federal agencies to respond
to claims, thereby affecting direct spending because some
agencies are allowed to use fees, receipts from the sale of
goods, and other collections to cover operating costs. CBO
estimates that any net changes in direct spending by those
agencies would be negligible because most of them can adjust
amounts collected to reflect changes in operating costs.
CBO has not reviewed H.R. 2062 for intergovernmental or
private-sector mandates. Section 4 of the Unfunded Mandates
Reform Act excludes from the application of that act any
legislative provisions that would establish or enforce
statutory rights prohibiting discrimination. CBO has determined
that this legislation falls within that exclusion because it
would extend protections against discrimination based on age
and disability in the workplace.
The CBO staff contacts for this estimate are Lindsay Wylie
(for federal costs) and Lilia Ledezma (for mandates). The
estimate was reviewed by Leo Lex, Deputy Director of Budget
Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 2062.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget and Impoundment
Control Act of 1974.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, H.R. 2062, as reported, are shown as follows:
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967
* * * * * * *
prohibition of age discrimination
Sec. 4. (a) It shall be unlawful for an employer--
(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's age;
(2) to limit, segregate, or classify his employees in
any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise
adversely affect his status as an employee, because of
such individual's age; or
(3) to reduce the wage rate of any employee in order
to comply with this Act.
(b) It shall be unlawful for an employment agency to fail or
refuse to refer for employment, or otherwise to discriminate
against, any individual because of such individual's age, or to
classify or refer for employment any individual on the basis of
such individual's age.
(c) It shall be unlawful for a labor organization--
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual
because of his age;
(2) to limit, segregate, or classify its membership,
or to classify or fail or refuse to refer for
employment any individual, in any way which would
deprive or tend to deprive any individual of employment
opportunities, or would limit such employment
opportunities or otherwise adversely affect his status
as an employee or as an applicant for employment,
because of such individual's age;
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.
(d) It shall be unlawful for an employer to discriminate
against any of his employees or applicants for employment, for
an employment agency to discriminate against any individual, or
for a labor organization to discriminate against any member
thereof or applicant for membership, because such individual,
member or applicant for membership has opposed any practice
made unlawful by this section, or because such individual,
member or applicant for membership has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or litigation under this Act.
(e) It shall be unlawful for an employer, labor organization,
or employment agency to print or publish, or cause to be
printed or published, any notice or advertisement relating to
employment by such an employer or membership in or any
classification or referral for employment by such a labor
organization, or relating to any classification or referral for
employment by such an employment agency, indicating any
preference, limitation, specification, or discrimination, based
on age.
(f) It shall not be unlawful for an employer, employment
agency, or labor organization--
(1) to take any action otherwise prohibited under
subsections (a), (b), (c), or (e) of this section where
age is a bona fide occupational qualification
reasonably necessary to the normal operation of the
particular business, or where the differentiation is
based on reasonable factors other than age, or where
such practices involve an employee in a workplace in a
foreign country, and compliance with such subsections
would cause such employer, or a corporation controlled
by such employer, to violate the laws of the country in
which such workplace is located;
(2) to take any action otherwise prohibited under
subsection (a), (b), (c), or (e) of this section--
(A) to observe the terms of a bona fide
seniority system that is not intended to evade
the purposes of this Act, except that no such
seniority system shall require or permit the
involuntary retirement of any individual
specified by section 12(a) because of the age
of such individual; or
(B) to observe the terms of a bona fide
employee benefit plan--
(i) where, for each benefit or
benefit package, the actual amount of
payment made or cost incurred on behalf
of an older worker is no less than that
made or incurred on behalf of a younger
worker, as permissible under section
1625.10, title 29, Code of Federal
Regulations (as in effect on June 22,
1989); or
(ii) that is a voluntary early
retirement incentive plan consistent
with the relevant purpose or purposes
of this Act.
Notwithstanding clause (i) or (ii) of subparagraph (B),
no such employee benefit plan or voluntary early
retirement incentive plan shall excuse the failure to
hire any individual, and no such employee benefit plan
shall require or permit the involuntary retirement of
any individual specified by section 12(a), because of
the age of such individual. An employer, employment
agency, or labor organization acting under subparagraph
(A), or under clause (i) or (ii) of subparagraph (B),
shall have the burden of proving that such actions are
lawful in any civil enforcement proceeding brought
under this Act; or
(3) to discharge or otherwise discipline an
individual for good cause.
(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.
(h)(1) If an employer controls a corporation whose place of
incorporation is in a foreign country, any practice by such
corporation prohibited under this section shall be presumed to
be such practice by such employer.
(2) The prohibitions of this section shall not apply where
the employer is a foreign person not controlled by an American
employer.
(3) For the purpose of this subsection the determination of
whether an employer controls a corporation shall be based upon
the--
(A) interrelation of operations,
(B) common management,
(C) centralized control of labor relations, and
(D) common ownership or financial control,
of the employer and the corporation.
(i)(1) Except as otherwise provided in this subsection, it
shall be unlawful for an employer, an employment agency, a
labor organization, or any combination thereof to establish or
maintain an employee pension benefit plan which requires or
permits--
(A) in the case of a defined benefit plan, the
cessation of an employee's benefit accrual, or the
reduction of the rate of an employee's benefit accrual,
because of age, or
(B) in the case of a defined contribution plan, the
cessation of allocations to an employee's account, or
the reduction of the rate at which amounts are
allocated to an employee's account, because of age.
(2) Nothing in this section shall be construed to prohibit an
employer, employment agency, or labor organization from
observing any provision of an employee pension benefit plan to
the extent that such provision imposes (without regard to age)
a limitation on the amount of benefits that the plan provides
or a limitation on the number of years of service or years of
participation which are taken into account for purposes of
determining benefit accrual under the plan.
(3) In the case of any employee who, as of the end of any
plan year under a defined benefit plan, has attained normal
retirement age under such plan--
(A) if distribution of benefits under such plan with
respect to such employee has commenced as of the end of
such plan year, then any requirement of this subsection
for continued accrual of benefits under such plan with
respect to such employee during such plan year shall be
treated as satisfied to the extent of the actuarial
equivalent of in-service distribution of benefits, and
(B) if distribution of benefits under such plan with
respect to such employee has not commenced as of the
end of such year in accordance with section 206(a)(3)
of the Employee Retirement Income Security Act of 1974
and section 401(a)(14)(C) of the Internal Revenue Code
of 1986, and the payment of benefits under such plan
with respect to such employee is not suspended during
such plan year pursuant to section 203(a)(3)(B) of the
Employee Retirement Income Security Act of 1974 or
section 411(a)(3)(B) of the Internal Revenue Code of
1986, then any requirement of this subsection for
continued accrual of benefits under such plan with
respect to such employee during such plan year shall be
treated as satisfied to the extent of any adjustment in
the benefit payable under the plan during such plan
year attributable to the delay in the distribution of
benefits after the attainment of normal retirement age.
The provisions of this paragraph shall apply in accordance with
regulations of the Secretary of the Treasury. Such regulations
shall provide for the application of the preceding provisions
of this paragraph to all employee pension benefit plans subject
to this subsection and may provide for the application of such
provisions, in the case of any such employee, with respect to
any period of time within a plan year.
(4) Compliance with the requirements of this subsection with
respect to an employee pension benefit plan shall constitute
compliance with the requirements of this section relating to
benefit accrual under such plan.
(5) Paragraph (1) shall not apply with respect to any
employee who is a highly compensated employee (within the
meaning of section 414(q) of the International Revenue Code of
1986) to the extent provided in regulations prescribed by the
Secretary of the Treasury for purposes of precluding
discrimination in favor of highly compensated employees within
the meaning of subchapter D of chapter 1 of the Internal
Revenue Code of 1986.
(6) A plan shall not be treated as failing to meet the
requirements of paragraph (1) solely because the subsidized
portion of any early retirement benefit is disregarded in
determining benefit accruals or it is a plan permitted by
subsection (m)..
(7) Any regulations prescribed by the Secretary of the
Treasury pursuant to clause (v) of section 411(b)(1)(H) of the
Internal Revenue Code of 1986 and subparagraphs (C) and (D) of
section 411(b)(2) of such Code shall apply with respect to the
requirements of this subsection in the same manner and to the
same extent as such regulations apply with respect to the
requirements of such sections 411(b)(1)(H) and 411(b)(2).
(8) A plan shall not be treated as failing to meet the
requirements of this section solely because such plan provides
a normal retirement age described in section 3(24)(B) of the
Employee Retirement Income Security Act of 1974 and section
411(a)(8)(B) of the Internal Revenue Code of 1986.
(9) For purposes of this subsection--
(A) The terms ``employee pension benefit plan'',
``defined benefit plan'', ``defined contribution
plan'', and ``normal retirement age'' have the meanings
provided such terms in section 3 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C.
1002).
(B) The term ``compensation'' has the meaning
provided by section 414(s) of the Internal Revenue Code
of 1986.
(10) Special rules relating to age.--
(A) Comparison to similarly situated younger
individual.--
(i) In general.--A plan shall not be
treated as failing to meet the
requirements of paragraph (1) if a
participant's accrued benefit, as
determined as of any date under the
terms of the plan, would be equal to or
greater than that of any similarly
situated, younger individual who is or
could be a participant.
(ii) Similarly situated.--For
purposes of this subparagraph, a
participant is similarly situated to
any other individual if such
participant is identical to such other
individual in every respect (including
period of service, compensation,
position, date of hire, work history,
and any other respect) except for age.
(iii) Disregard of subsidized early
retirement benefits.--In determining
the accrued benefit as of any date for
purposes of this clause, the subsidized
portion of any early retirement benefit
or retirement-type subsidy shall be
disregarded.
(iv) Accrued benefit.--For purposes
of this subparagraph, the accrued
benefit may, under the terms of the
plan, be expressed as an annuity
payable at normal retirement age, the
balance of a hypothetical account, or
the current value of the accumulated
percentage of the employee's final
average compensation.
(B) Applicable defined benefit plans.--
(i) Interest credits.--
(I) In general.--An
applicable defined benefit plan
shall be treated as failing to
meet the requirements of
paragraph (1) unless the terms
of the plan provide that any
interest credit (or an
equivalent amount) for any plan
year shall be at a rate which
is not greater than a market
rate of return. A plan shall
not be treated as failing to
meet the requirements of this
subclause merely because the
plan provides for a reasonable
minimum guaranteed rate of
return or for a rate of return
that is equal to the greater of
a fixed or variable rate of
return.
(II) Preservation of
capital.--An interest credit
(or an equivalent amount) of
less than zero shall in no
event result in the account
balance or similar amount being
less than the aggregate amount
of contributions credited to
the account.
(III) Market rate of
return.--The Secretary of the
Treasury may provide by
regulation for rules governing
the calculation of a market
rate of return for purposes of
subclause (I) and for
permissible methods of
crediting interest to the
account (including fixed or
variable interest rates)
resulting in effective rates of
return meeting the requirements
of subclause (I). In the case
of a governmental plan (as
defined in the first sentence
of section 414(d) of the
Internal Revenue Code of 1986),
a rate of return or a method of
crediting interest established
pursuant to any provision of
Federal, State, or local law
(including any administrative
rule or policy adopted in
accordance with any such law)
shall be treated as a market
rate of return for purposes of
subclause (I) and a permissible
method of crediting interest
for purposes of meeting the
requirements of subclause (I),
except that this sentence shall
only apply to a rate of return
or method of crediting interest
if such rate or method does not
violate any other requirement
of this Act.
(ii) Special rule for plan
conversions.--If, after June 29, 2005,
an applicable plan amendment is
adopted, the plan shall be treated as
failing to meet the requirements of
paragraph (1)(H) unless the
requirements of clause (iii) are met
with respect to each individual who was
a participant in the plan immediately
before the adoption of the amendment.
(iii) Rate of benefit accrual.--
Subject to clause (iv), the
requirements of this clause are met
with respect to any participant if the
accrued benefit of the participant
under the terms of the plan as in
effect after the amendment is not less
than the sum of--
(I) the participant's accrued
benefit for years of service
before the effective date of
the amendment, determined under
the terms of the plan as in
effect before the amendment,
plus
(II) the participant's
accrued benefit for years of
service after the effective
date of the amendment,
determined under the terms of
the plan as in effect after the
amendment.
(iv) Special rules for early
retirement subsidies.--For purposes of
clause (iii)(I), the plan shall credit
the accumulation account or similar
amount with the amount of any early
retirement benefit or retirement-type
subsidy for the plan year in which the
participant retires if, as of such
time, the participant has met the age,
years of service, and other
requirements under the plan for
entitlement to such benefit or subsidy.
(v) Applicable plan amendment.--For
purposes of this subparagraph--
(I) In general.--The term
``applicable plan amendment''
means an amendment to a defined
benefit plan which has the
effect of converting the plan
to an applicable defined
benefit plan.
(II) Special rule for
coordinated benefits.--If the
benefits of 2 or more defined
benefit plans established or
maintained by an employer are
coordinated in such a manner as
to have the effect of the
adoption of an amendment
described in subclause (I), the
sponsor of the defined benefit
plan or plans providing for
such coordination shall be
treated as having adopted such
a plan amendment as of the date
such coordination begins.
(III) Multiple amendments.--
The Secretary of the Treasury
shall issue regulations to
prevent the avoidance of the
purposes of this subparagraph
through the use of 2 or more
plan amendments rather than a
single amendment.
(IV) Applicable defined
benefit plan.--For purposes of
this subparagraph, the term
``applicable defined benefit
plan'' has the meaning given
such term by section 203(f)(3)
of the Employee Retirement
Income Security Act of 1974.
(vi) Termination requirements.--An
applicable defined benefit plan shall
not be treated as meeting the
requirements of clause (i) unless the
plan provides that, upon the
termination of the plan--
(I) if the interest credit
rate (or an equivalent amount)
under the plan is a variable
rate, the rate of interest used
to determine accrued benefits
under the plan shall be equal
to the average of the rates of
interest used under the plan
during the 5-year period ending
on the termination date, and
(II) the interest rate and
mortality table used to
determine the amount of any
benefit under the plan payable
in the form of an annuity
payable at normal retirement
age shall be the rate and table
specified under the plan for
such purpose as of the
termination date, except that
if such interest rate is a
variable rate, the interest
rate shall be determined under
the rules of subclause (I).
(C) Certain offsets permitted.--A plan shall
not be treated as failing to meet the
requirements of paragraph (1) solely because
the plan provides offsets against benefits
under the plan to the extent such offsets are
allowable in applying the requirements of
section 401(a) of the Internal Revenue Code of
1986.
(D) Permitted disparities in plan
contributions or benefits.--A plan shall not be
treated as failing to meet the requirements of
paragraph (1) solely because the plan provides
a disparity in contributions or benefits with
respect to which the requirements of section
401(l) of the Internal Revenue Code of 1986 are
met.
(E) Indexing permitted.--
(i) In general.--A plan shall not be
treated as failing to meet the
requirements of paragraph (1) solely
because the plan provides for indexing
of accrued benefits under the plan.
(ii) Protection against loss.--Except
in the case of any benefit provided in
the form of a variable annuity, clause
(i) shall not apply with respect to any
indexing which results in an accrued
benefit less than the accrued benefit
determined without regard to such
indexing.
(iii) Indexing.--For purposes of this
subparagraph, the term ``indexing''
means, in connection with an accrued
benefit, the periodic adjustment of the
accrued benefit by means of the
application of a recognized investment
index or methodology.
(F) Early retirement benefit or retirement-
type subsidy.--For purposes of this paragraph,
the terms ``early retirement benefit'' and
``retirement-type subsidy'' have the meaning
given such terms in section 203(g)(2)(A) of the
Employee Retirement Income Security Act of
1974.
(G) Benefit accrued to date.--For purposes of
this paragraph, any reference to the accrued
benefit shall be a reference to such benefit
accrued to date.
(j) It shall not be unlawful for an employer which is a
State, a political subdivision of a State, an agency or
instrumentality of a State or a political subdivision of a
State, or an interstate agency to fail or refuse to hire or to
discharge any individual because of such individual's age if
such action is taken--
(1) with respect to the employment of an individual
as a firefighter or as a law enforcement officer, the
employer has complied with section 3(d)(2) of the Age
Discrimination in Employment Amendments of 1996 if the
individual was discharged after the date described in
such section, and the individual has attained--
(A) the age of hiring or retirement,
respectively, in effect under applicable State
or local law on March 3, 1983; or
(B)(i) if the individual was not hired, the
age of hiring in effect on the date of such
failure or refusal to hire under applicable
State or local law enacted after the date of
enactment of the Age Discrimination in
Employment Amendments of 1996; or
(ii) if applicable State or local law was
enacted after the date of enactment of the Age
Discrimination in Employment Amendments of 1996
and the individual was discharged, the higher
of--
(I) the age of retirement in effect
on the date of such discharge under
such law; and
(II) age 55; and
(2) pursuant to a bona fide hiring or retirement plan
that is not a subterfuge to evade the purposes of this
Act.
(k) A seniority system or employee benefit plan shall comply
with this Act regardless of the date of adoption of such system
or plan.
(l) Notwithstanding clause (i) or (ii) of subsection
(f)(2)(B)--
(1)(A) It shall not be a violation of subsection (a), (b),
(c), or (e) solely because--
(i) an employee pension benefit plan (as defined in
section 3(2) of the Employee Retirement Income Security
Act of 1974 (29 U.S.C. 1002(2))) provides for the
attainment of a minimum age as a condition of
eligibility for normal or early retirement benefits; or
(ii) a defined benefit plan (as defined in section
3(35) of such Act) provides for--
(I) payments that constitute the subsidized
portion of an early retirement benefit; or
(II) social security supplements for plan
participants that commence before the age and
terminate at the age (specified by the plan)
when participants are eligible to receive
reduced or unreduced old-age insurance benefits
under title II of the Social Security Act (42
U.S.C. 401 et seq.), and that do not exceed
such old-age insurance benefits.
(B) A voluntary early retirement incentive plan
that--
(i) is maintained by--
(I) a local educational agency (as
defined in section 8101 of the
Elementary and Secondary Education Act
of 1965), or
(II) an education association which
principally represents employees of 1
or more agencies described in subclause
(I) and which is described in section
501(c) (5) or (6) of the Internal
Revenue Code of 1986 and exempt from
taxation under section 501(a) of such
Code, and
(ii) makes payments or supplements described
in subclauses (I) and (II) of subparagraph
(A)(ii) in coordination with a defined benefit
plan (as so defined) maintained by an eligible
employer described in section 457(e)(1)(A) of
such Code or by an education association
described in clause (i)(II),
shall be treated solely for purposes of subparagraph
(A)(ii) as if it were a part of the defined benefit
plan with respect to such payments or supplements.
Payments or supplements under such a voluntary early
retirement incentive plan shall not constitute
severance pay for purposes of paragraph (2).
(2)(A) It shall not be a violation of subsection (a), (b),
(c), or (e) solely because following a contingent event
unrelated to age--
(i) the value of any retiree health benefits received
by an individual eligible for an immediate pension;
(ii) the value of any additional pension benefits
that are made available solely as a result of the
contingent event unrelated to age and following which
the individual is eligible for not less than an
immediate and unreduced pension; or
(iii) the values described in both clauses (i) and
(ii),
are deducted from severance pay made available as a result of
the contingent event unrelated to age.
(B) For an individual who receives immediate pension benefits
that are actuarially reduced under subparagraph (A)(i), the
amount of the deduction available pursuant to subparagraph
(A)(i) shall be reduced by the same percentage as the reduction
in the pension benefits.
(C) For purposes of this paragraph, severance pay shall
include that portion of supplemental unemployment compensation
benefits (as described in section 501(c)(17) of the Internal
Revenue Code of 1986) that--
(i) constitutes additional benefits of up to 52
weeks;
(ii) has the primary purpose and effect of continuing
benefits until an individual becomes eligible for an
immediate and unreduced pension; and
(iii) is discontinued once the individual becomes
eligible for an immediate and unreduced pension.
(D) For purposes of this paragraph and solely in order to
make the deduction authorized under this paragraph, the term
``retiree health benefits'' means benefits provided pursuant to
a group health plan covering retirees, for which (determined as
of the contingent event unrelated to age)--
(i) the package of benefits provided by the employer
for the retirees who are below age 65 is at least
comparable to benefits provided under title XVIII of
the Social Security Act (42 U.S.C. 1395 et seq.);
(ii) the package of benefits provided by the employer
for the retirees who are age 65 and above is at least
comparable to that offered under a plan that provides a
benefit package with one-fourth the value of benefits
provided under title XVIII of such Act; or
(iii) the package of benefits provided by the
employer is as described in clauses (i) and (ii).
(E)(i) If the obligation of the employer to provide retiree
health benefits is of limited duration, the value for each
individual shall be calculated at a rate of $3,000 per year for
benefit years before age 65, and $750 per year for benefit
years beginning at age 65 and above.
(ii) If the obligation of the employer to provide retiree
health benefits is of unlimited duration, the value for each
individual shall be calculated at a rate of $48,000 for
individuals below age 65, and $24,000 for individuals age 65
and above.
(iii) The values described in clauses (i) and (ii) shall be
calculated based on the age of the individual as of the date of
the contingent event unrelated to age. The values are effective
on the date of enactment of this subsection, and shall be
adjusted on an annual basis, with respect to a contingent event
that occurs subsequent to the first year after the date of
enactment of this subsection, based on the medical component of
the Consumer Price Index for all-urban consumers published by
the Department of Labor.
(iv) If an individual is required to pay a premium for
retiree health benefits, the value calculated pursuant to this
subparagraph shall be reduced by whatever percentage of the
overall premium the individual is required to pay.
(F) If an employer that has implemented a deduction pursuant
to subparagraph (A) fails to fulfill the obligation described
in subparagraph (E), any aggrieved individual may bring an
action for specific performance of the obligation described in
subparagraph (E). The relief shall be in addition to any other
remedies provided under Federal or State law.
(3) It shall not be a violation of subsection (a), (b), (c),
or (e) solely because an employer provides a bona fide employee
benefit plan or plans under which long-term disability benefits
received by an individual are reduced by any pension benefits
(other than those attributable to employee contributions)--
(A) paid to the individual that the individual
voluntarily elects to receive; or
(B) for which an individual who has attained the
later of age 62 or normal retirement age is eligible.
(m) Notwithstanding subsection (f)(2)(B), it shall not be a
violation of subsection (a), (b), (c), or (e) solely because a
plan of an institution of higher education (as defined in
section 101 of the Higher Education Act of 1965) offers
employees who are serving under a contract of unlimited tenure
(or similar arrangement providing for unlimited tenure)
supplemental benefits upon voluntary retirement that are
reduced or eliminated on the basis of age, if--
(1) such institution does not implement with respect
to such employees any age-based reduction or cessation
of benefits that are not such supplemental benefits,
except as permitted by other provisions of this Act;
(2) such supplemental benefits are in addition to any
retirement or severance benefits which have been
offered generally to employees serving under a contract
of unlimited tenure (or similar arrangement providing
for unlimited tenure), independent of any early
retirement or exit-incentive plan, within the preceding
365 days; and
(3) any employee who attains the minimum age and
satisfies all non-age-based conditions for receiving a
benefit under the plan has an opportunity lasting not
less than 180 days to elect to retire and to receive
the maximum benefit that could then be elected by a
younger but otherwise similarly situated employee, and
the plan does not require retirement to occur sooner
than 180 days after such election.
* * * * * * *
recordkeeping, investigation, and enforcement
Sec. 7. (a) The Secretary shall have the power to make
investigations and require the keeping of records necessary or
appropriate for the administration of this Act in accordance
with the powers and procedures provided in sections 9 and 11 of
the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 209
and 211).
(b) [The] (1) The provisions of this Act shall be enforced
in accordance with the powers, remedies, and procedures
provided in sections 11(b), 16 (except for subsection (a)
thereof), and 17 of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 211(b), 216, 217), and subsection (c) of
this section. Any act prohibited under section 4 of this Act
shall be deemed to be a prohibited act under section 15 of the
Fair Labor Standards Act of 1938, as amended (29 U.S.C. 215).
[Amounts]
(2) Amounts owing to a person as a result of a violation of
this Act shall be deemed to be unpaid minimum wages or unpaid
overtime compensation for purposes of sections 16 and 17 of the
Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216,
217): Provided, That liquidated damages shall be payable only
in cases of willful violations of this Act. In any action
brought to enforce this Act the court shall have jurisdiction
to grant such legal or equitable relief as may be appropriate
to effectuate the purposes of this Act, including without
limitation judgments compelling employment, reinstatement or
promotion, or enforcing the liability for amounts deemed to be
unpaid minimum wages or unpaid overtime compensation under this
section. [Before]
(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.
(4) Before instituting any action under this section, the
Secretary shall attempt to eliminate the discriminatory
practice or practices alleged, and to effect voluntary
compliance with the requirements of this Act through informal
methods of conciliation, conference, and persuasion.
(c)(1) [Any] Subject to subsection (b)(3), any person
aggrieved may bring a civil action in any court of competent
jurisdiction for such legal or equitable relief as will
effectuate the purposes of this Act: Provided, That the right
of any person to bring such action shall terminate upon the
commencement of an action by the Secretary to enforce the right
of such employee under this Act.
(2) In an action brought under paragraph (1), a person shall
be entitled to a trial by jury of any issue of fact in any such
action for recovery of amounts owing as a result of a violation
of this Act, regardless of whether equitable relief is sought
by any party in such action.
(d) No civil action may be commenced by an individual under
this section until 60 days after a charge alleging unlawful
discrimination has been filed with the Secretary. Such a charge
shall be filed--
(1) within 180 days after the alleged unlawful
practice occurred; or
(2) in a case to which section 14(b) applies, within
300 days after the alleged unlawful practice occurred,
or within 30 days after receipt by the individual of
notice of termination of proceedings under State law,
whichever is earlier.
(2) Upon receiving such a charge, the Secretary shall
promptly notify all persons named in such charge as prospective
defendants in the action and shall promptly seek to eliminate
any alleged unlawful practice by informal methods of
conciliation, conference, and persuasion.
(3) For purposes of this section, an unlawful practice
occurs, with respect to discrimination in compensation in
violation of this Act, when a discriminatory compensation
decision or other practice is adopted, when a person becomes
subject to a discriminatory compensation decision or other
practice, or when a person is affected by application of a
discriminatory compensation decision or other practice,
including each time wages, benefits, or other compensation is
paid, resulting in whole or in part from such a decision or
other practice.
(e) Section 10 of the Portal-to-Portal Act of 1947 shall
apply to actions under this Act. If a charge filed with the
Commission under this Act is dismissed or the proceedings of
the Commission are otherwise terminated by the Commission, the
Commission shall notify the person aggrieved. A civil action
may be brought under this section by a person defined in
section 11(a) against the respondent named in the charge within
90 days after the date of the receipt of such notice.
(f)(1) An individual may not waive any right or claim under
this Act unless the waiver is knowing and voluntary. Except as
provided in paragraph (2), a waiver may not be considered
knowing and voluntary unless at a minimum--
(A) the waiver is part of an agreement between the
individual and the employer that is written in a manner
calculated to be understood by such individual, or by
the average individual eligible to participate;
(B) the waiver specifically refers to rights or
claims arising under this Act;
(C) the individual does not waive rights or claims
that may arise after the date the waiver is executed;
(D) the individual waives rights or claims only in
exchange for consideration in addition to anything of
value to which the individual already is entitled;
(E) the individual is advised in writing to consult
with an attorney prior to executing the agreement;
(F)(i) the individual is given a period of at least
21 days within which to consider the agreement; or
(ii) if a waiver is requested in connection with an
exit incentive or other employment termination program
offered to a group or class of employees, the
individual is given a period of at least 45 days within
which to consider the agreement;
(G) the agreement provides that for a period of at
least 7 days following the execution of such agreement,
the individual may revoke the agreement, and the
agreement shall not become effective or enforceable
until the revocation period has expired;
(H) if a waiver is requested in connection with an
exit incentive or other employment termination program
offered to a group or class of employees, the employer
(at the commencement of the period specified in
subparagraph (F)) informs the individual in writing in
a manner calculated to be understood by the average
individual eligible to participate, as to--
(i) any class, unit, or group of individuals
covered by such program, any eligibility
factors for such program, and any time limits
applicable to such program; and
(ii) the job titles and ages of all
individuals eligible or selected for the
program, and the ages of all individuals in the
same job classification or organizational unit
who are not eligible or selected for the
program.
(2) A waiver in settlement of a charge filed with the Equal
Employment Opportunity Commission, or an action filed in court
by the individual or the individual's representative, alleging
age discrimination of a kind prohibited under section 4 or 15
may not be considered knowing and voluntary unless at a
minimum--
(A) subparagraphs (A) through (E) of paragraph (1)
have been met; and
(B) the individual is given a reasonable period of
time within which to consider the settlement agreement.
(3) In any dispute that may arise over whether any of the
requirements, conditions, and circumstances set forth in
subparagraph (A), (B), (C), (D), (E), (F), (G), or (H) of
paragraph (1), or subparagraph (A) or (B) of paragraph (2),
have been met, the party asserting the validity of a waiver
shall have the burden of proving in a court of competent
jurisdiction that a waiver was knowing and voluntary pursuant
to paragraph (1) or (2).
(4) No waiver agreement may affect the Commission's rights
and responsibilities to enforce this Act. No waiver may be used
to justify interfering with the protected right of an employee
to file a charge or participate in an investigation or
proceeding conducted by the Commission.
* * * * * * *
definitions
Sec. 11. For the purposes of this Act--
(a) The term ``person'' means one or more individuals,
partnerships, associations, labor organizations, corporations,
business trusts, legal representatives, or any organized groups
of persons.
(b) The term ``employer'' means a person engaged in an
industry affecting commerce who has twenty or more employees
for each working day in each of twenty or more calendar weeks
in the current or preceding calendar year: Provided, That prior
to June 30, 1968, employers having fewer than fifty employees
shall not be considered employers. The term also means (1) any
agent of such a person, and (2) a State or political
subdivision of a State and any agency or instrumentality of a
State or a political subdivision of a State, and any interstate
agency, but such term does not include the United States, or a
corporation wholly owned by the Government of the United
States.
(c) The term ``employment agency'' means any person regularly
undertaking with or without compensation to procure employees
for an employer and includes an agent of such a person; but
shall not include an agency of the United States.
(d) The term ``labor organization'' means a labor
organization engaged in an industry affecting commerce, and any
agent of such an organization, and includes any organization of
any kind, any agency, or employee representation committee,
group, association, or plan so engaged in which employees
participate and which exists for the purpose, in whole or in
part, of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours, or other terms or
conditions of employment, and any conference, general
committee, joint or system board, or joint council so engaged
which is subordinate to a national or international labor
organization.
(e) A labor organization shall be deemed to be engaged in an
industry affecting commerce if (1) it maintains or operates a
hiring hall or hiring office which procures employees for an
employer or procures for employees opportunities to work for an
employer, or (2) the number of its members (or, where it is a
labor organization composed of other labor organizations or
their representatives, if the aggregate number of the members
of such other labor organization) is fifty or more prior to
July 1, 1968, or twenty-five or more on or after July 1, 1968,
and such labor organization--
(1) is the certified representative of employees
under the provisions of the National Labor Relations
Act, as amended, or the Railway Labor Act, as amended;
or
(2) although not certified, is a national or
international labor organization or a local labor
organization recognized or acting as the representative
of employees of an employer or employers engaged in an
industry affecting commerce; or
(3) has chartered a local labor organization or
subsidiary body which is representing or actively
seeking to represent employees of employers within the
meaning of paragraph (1) or (2); or
(4) has been chartered by a labor organization
representing or actively seeking to represent employees
within the meaning of paragraph (1) or (2) as the local
or subordinate body through which such employees may
enjoy membership or become affiliated with such labor
organization; or
(5) is a conference, general committee, joint or
system board, or joint council subordinate to a
national or international labor organization, which
includes a labor organization engaged in an industry
affecting commerce within the meaning of any of the
preceding paragraphs of this subsection.
(f) The term ``employee'' means an individual employed by any
employer except that the term ``employee'' shall not include
any person elected to public office in any State or political
subdivision of any State by the qualified voters thereof, or
any person chosen by such officer to be on such officer's
personal staff, or an appointee on the policymaking level or an
immediate adviser with respect to the exercise of the
constitutional or legal powers of the office. The exemption set
forth in the preceding sentence shall not include employees
subject to the civil service laws of a State government,
governmental agency, or political subdivision. The term
``employee'' includes any individual who is a citizen of the
United States employed by an employer in a workplace in a
foreign country.
(g) The term ``commerce'' means trade, traffic, commerce,
transportation, transmission, or communication among the
several States; or between a State and any place outside
thereof; or within the District of Columbia, or a possession of
the United States; or between points in the same State but
through a point outside thereof.
(h) The term ``industry affecting commerce'' means any
activity, business, or industry in commerce or in which a labor
dispute would hinder or obstruct commerce or the free flow of
commerce and includes any activity or industry ``affecting
commerce'' within the meaning of the Labor-Management Reporting
and Disclosure Act of 1959.
(i) The term ``State'' includes a State of the United States,
the District of Columbia, Puerto Rico, the Virgin Islands,
American Samoa, Guam, Wake Island, the Canal Zone, and Outer
Continental Shelf lands defined in the Outer Continental Shelf
Lands Act.
(j) The term ``firefighter'' means an employee, the duties of
whose position are primarily to perform work directly connected
with the control and extinguishment of fires or the maintenance
and use of firefighting apparatus and equipment, including an
employee engaged in this activity who is transferred to a
supervisory or administrative position.
(k) The term ``law enforcement officer'' means an employee,
the duties of whose position are primarily the investigation,
apprehension, or detention of individuals suspected or
convicted of offenses against the criminal laws of a State,
including an employee engaged in this activity who is
transferred to a supervisory or administrative position. For
the purpose of this subsection, ``detention'' includes the
duties of employees assigned to guard individuals incarcerated
in any penal institution.
(l) The term ``compensation, terms, conditions, or privileges
of employment'' encompasses all employee benefits, including
such benefits provided pursuant to a bona fide employee benefit
plan.
(m) The term ``demonstrates'' means meets the burdens of
production and persuasion.
* * * * * * *
nondiscrimination on account of age in federal government employment
Sec. 15. (a) All personnel actions affecting employees or
applicants for employment who are at least 40 years of age
(except personnel actions with regard to aliens employed
outside the limits of the United States) in military
departments as defined in section 102 of title 5, United States
Code, in executive agencies as defined in section 105 of title
5, United States Code (including employees and applicants for
employment who are paid from nonappropriated funds), in the
United States Postal Service and the Postal Rate Commission, in
those units in the government of the District of Columbia
having positions in the competitive service, and in those units
of the judicial branch of the Federal Government having
positions in the competitive service, in the Smithsonian
Institution, and in the Government Printing Office, the General
Accounting Office, and the Library of Congress shall be made
free from any discrimination based on age.
(b) Except as otherwise provided in this subsection, the
Civil Service Commission is authorized to enforce the
provisions of subsection (a) through appropriate remedies,
including reinstatement or hiring of employees with or without
backpay, as will effectuate the policies of this section. The
Civil Service Commission shall issue such rules, regulations,
orders, and instructions as it deems necessary and appropriate
to carry out its responsibilities under this section. The Civil
Service Commission shall--
(1) be responsible for the review and evaluation of
the operation of all agency programs designed to carry
out the policy of this section, periodically obtaining
and publishing (on at least a semiannual basis)
progress reports from each department, agency, or unit
referred to in subsection (a);
(2) consult with and solicit the recommendations of
interested individuals, groups, and organizations
relating to nondiscrimination in employment on account
of age; and
(3) provide for the acceptance and processing of
complaints of discrimination in Federal employment on
account of age.
The head of each such department, agency, or unit shall comply
with such rules, regulations, orders, and instructions of the
Civil Service Commission which shall include a provision that
an employee or applicant for employment shall be notified of
any final action taken on any complaint of discrimination filed
by him thereunder. Reasonable exemptions to the provisions of
this section may be established by the Commission but only when
the Commission has established a maximum age requirement on the
basis of a determination that age is a bona fide occupational
qualification necessary to the performance of the duties of the
position. With respect to employment in the Library of
Congress, authorities granted in this subsection to the Civil
Service Commission shall be exercised by the Librarian of
Congress.
(c) Any person aggrieved may bring a civil action in any
Federal district court of competent jurisdiction for such legal
or equitable relief as will effectuate the purposes of this
Act.
(d) When the individual has not filed a complaint concerning
age discrimination with the Commission, no civil action may be
commenced by any individual under this section until the
individual has given the Commission not less than thirty days'
notice of an intent to file such action. Such notice shall be
filed within one hundred and eighty days after the alleged
unlawful practice occurred. Upon receiving a notice of intent
to sue, the Commission shall promptly notify all persons named
therein as prospective defendants in the action and take any
appropriate action to assure the elimination of any unlawful
practice.
(e) Nothing contained in this section shall relieve any
Government agency or official of the responsibility to assure
nondiscrimination on account of age in employment as required
under any provision of Federal law.
(f) Any personnel action of any department, agency, or other
entity referred to in subsection (a) of this section shall not
be subject to, or affected by, any provision of this Act, other
than the provisions of sections 7(d)(3) and 12(b) of this Act
and the provisions of this section.
(g)(1) The Civil Service Commission shall undertake a study
relating to the effects of the amendments made to this section
by the Age Discrimination in Employment Act Amendments of 1978,
and the effects of section 12(b) of this Act, as added by the
Age Discrimination in Employment Act Amendments of 1978.
(2) The Civil Service Commission shall transmit a report to
the President and to the Congress containing the findings of
the Commission resulting from the study of the Commission under
paragraph (1) of this subsection. Such report shall be
transmitted no later than January 1, 1980.
(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.
* * * * * * *
----------
CIVIL RIGHTS ACT OF 1964
* * * * * * *
TITLE VII--EQUAL EMPLOYMENT OPPORTUNITY
* * * * * * *
discrimination because of race, color, religion, sex, or national
origin
Sec. 703. (a) It shall be an unlawful employment practice for
an employer--
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status
as an employee, because of such individual's race,
color, religion, sex, or national origin.
(b) It shall be an unlawful employment practice for an
employment agency to fail or refuse to refer for employment, or
otherwise discriminate against, any individual because of his
race, color, religion, sex, or national origin, or to classify
or refer for employment any individual on the basis of his
race, color, religion, sex, or national origin.
(c) It shall be an unlawful employment practice for a labor
organization--
(1) to exclude or to expel from its membership, or
otherwise to discriminate against, any individual
because of his race, color, religion, sex, or national
origin;
(2) to limit, segregate, or classify its membership
or applicants for membership, or to classify or fail or
refuse to refer for employment any individual, in any
way which would deprive or tend to deprive any
individual of employment opportunities, or would limit
such employment opportunities or otherwise adversely
affect his status as an employee or as an applicant for
employment, because of such individual's race, color
religion, sex, or national origin; or
(3) to cause or attempt to cause an employer to
discriminate against an individual in violation of this
section.
(d) It shall be an unlawful employment practice for any
employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or
retraining, including on-the-job training programs to
discriminate against any individual because of his race, color,
religion, sex, or national origin in admission to, or
employment in, any program established to provide
apprenticeship or other training.
(e) Notwithstanding any other provision of this title, (1) it
shall not be an unlawful employment practice for an employer to
hire and employ employees, for an employment agency to
classify, or refer for employment any individual, for a labor
organization to classify its membership or to classify or refer
for employment any individual, or for an employer, labor
organization, or joint labor-management committee controlling
apprenticeship or other training or retraining programs to
admit or employ any individual in any such program, on the
basis of his religion, sex, or national origin in those certain
instances where religion, sex, or national origin is a bona
fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise, and
(2) it shall not be an unlawful employment practice for a
school, college, university, or other educational institution
or institution of learning to hire and employ employees of a
particular religion if such school, college, university, or
other educational institution or institution of learning is, in
whole or in substantial part, owned, supported, controlled, or
managed by a particular religion or by a particular religious
corporation, association, or society, or if the curriculum of
such school, college, university, or other educational
institution or institution of learning is directed toward the
propagation of a particular religion.
(f) As used in this title, the phrase ``unlawful employment
practice'' shall not be deemed to include any action or measure
taken by any employer, labor organization, joint labor-
management committee, or employment agency with respect to an
individual who is a member of the Communist Party of the United
States or of any other organization required to register as a
Communist-action or Communist-front organization by final order
of the Subversive Activities Control Board pursuant to the
Subversive Activities Control Act of 1950.
(g) Notwithstanding any other provision of this title, it
shall not be an unlawful employment practice for an employer to
fail or refuse to hire and employ any individual for any
position, for an employer to discharge any individual from any
position, or for an employment agency to fail or refuse to
refer any individual for employment in any position, or for a
labor organization to fail or refuse to refer any individual
for employment in any position, if--
(1) the occupancy of such position, or access to the
premises in or upon which any part of the duties of
such position is performed or is to be performed, is
subject to any requirement imposed in the interest of
the national security of the United States under any
security program in effect pursuant to or administered
under any statute of the United States or any Executive
order of the President; and
(2) such individual has not fulfilled or has ceased
to fulfill that requirement.
(h) Notwithstanding any other provision of this title, it
shall not be an unlawful employment practice for an employer to
apply different standards of compensation, or different terms,
conditions, or privileges of employment pursuant to a bona fide
seniority or merit system, or a system which measures earnings
by quantity or quality of production or to employees who work
in different locations, provided that such differences are not
the result of an intention to discriminate because of race,
color, religion, sex, or national origin, nor shall it be an
unlawful employment practice for an employer to give and to act
upon the results of any professionally developed ability test
provided that such test, its administration or action upon the
results is not designed, intended or used to discriminate
because of race, color, religion, sex or national origin. It
shall not be an unlawful employment practice under this title
for any employer to differentiate upon the basis of sex in
determining the amount of the wages or compensation paid or to
be paid to employees of such employer if such differentiation
is authorized by the provisions of section 6(d) of the Fair
Labor Standards Act of 1938, as amended (29 U.S.C. 206(d)).
(i) Nothing contained in this title shall apply to any
business or enterprise on or near an Indian reservation with
respect to any publicly announced employment practice of such
business or enterprise under which a preferential treatment is
given to any individual because he is an Indian living on or
near a reservation.
(j) Nothing contained in this title shall be interpreted to
require any employer, employment agency, labor organization, or
joint labor-management committee subject to this title to grant
preferential treatment to any individual or to any group
because of the race, color, religion, sex, or national origin
of such individual or group on account of an imbalance which
may exist with respect to the total number or percentage of
persons of any race, color, religion, sex, or national origin
employed by any employer, referred or classified for employment
by any employment agency or labor organization, admitted to
membership or classified by any labor organization, or admitted
to, or employed in, any apprenticeship or other training
program, in comparison with the total number or percentage of
persons of such race, color, religion, sex, or national origin
in any community, State, section, or other area, or in the
available work force in any community, State, section, or other
area.
(k)(1)(A) An unlawful employment practice based on disparate
impact is established under this title only if--
(i) a complaining party demonstrates that a
respondent uses a particular employment practice that
causes a disparate impact on the basis of race, color,
religion, sex, or national origin and the respondent
fails to demonstrate that the challenged practice is
job related for the position in question and consistent
with business necessity; or
(ii) the complaining party makes the demonstration
described in subparagraph (C) with respect to an
alternative employment practice and the respondent
refuses to adopt such alternative employment practice.
(B)(i) With respect to demonstrating that a particular
employment practice causes a disparate impact as described in
subparagraph (A)(i), the complaining party shall demonstrate
that each particular challenged employment practice causes a
disparate impact, except that if the complaining party can
demonstrate to the court that the elements of a respondent's
decisionmaking process are not capable of separation for
analysis, the decisionmaking process may be analyzed as one
employment practice.
(ii) If the respondent demonstrates that a specific
employment practice does not cause the disparate impact, the
respondent shall not be required to demonstrate that such
practice is required by business necessity.
(C) The demonstration referred to by subparagraph (A)(ii)
shall be in accordance with the law as it existed on June 4,
1989, with respect to the concept of ``alternative employment
practice''.
(2) A demonstration that an employment practice is required
by business necessity may not be used as a defense against a
claim of intentional discrimination under this title.
(3) Notwithstanding any other provision of this title, a rule
barring the employment of an individual who currently and
knowingly uses or possesses a controlled substance, as defined
in schedules I and II of section 102(6) of the Controlled
Substances Act (21 U.S.C. 802(6)), other than the use or
possession of a drug taken under the supervision of a licensed
health care professional, or any other use or possession
authorized by the Controlled Substances Act or any other
provision of Federal law, shall be considered an unlawful
employment practice under this title only if such rule is
adopted or applied with an intent to discriminate because of
race, color, religion, sex, or national origin.
(l) It shall be an unlawful employment practice for a
respondent, in connection with the selection or referral of
applicants or candidates for employment or promotion, to adjust
the scores of, use different cutoff scores for, or otherwise
alter the results of, employment related tests on the basis of
race, color, religion, sex, or national origin.
[(m) Except as otherwise provided in this title, an unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national
origin was a motivating factor for any employment practice,
even though other factors also motivated the practice.]
(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.
(n)(1)(A) Notwithstanding any other provision of law, and
except as provided in paragraph (2), an employment practice
that implements and is within the scope of a litigated or
consent judgment or order that resolves a claim of employment
discrimination under the Constitution or Federal civil rights
laws may not be challenged under the circumstances described in
subparagraph (B).
(B) A practice described in subparagraph (A) may not be
challenged in a claim under the Constitution or Federal civil
rights laws--
(i) by a person who, prior to the entry of the
judgment or order described in subparagraph (A), had--
(I) actual notice of the proposed judgment or
order sufficient to apprise such person that
such judgment or order might adversely affect
the interests and legal rights of such person
and that an opportunity was available to
present objections to such judgment or order by
a future date certain; and
(II) a reasonable opportunity to present
objections to such judgment or order; or
(ii) by a person whose interests were adequately
represented by another person who had previously
challenged the judgment or order on the same legal
grounds and with a similar factual situation, unless
there has been an intervening change in law or fact.
(2) Nothing in this subsection shall be construed to--
(A) alter the standards for intervention under rule
24 of the Federal Rules of Civil Procedure or apply to
the rights of parties who have successfully intervened
pursuant to such rule in the proceeding in which the
parties intervened;
(B) apply to the rights of parties to the action in
which a litigated or consent judgment or order was
entered, or of members of a class represented or sought
to be represented in such action, or of members of a
group on whose behalf relief was sought in such action
by the Federal Government;
(C) prevent challenges to a litigated or consent
judgment or order on the ground that such judgment or
order was obtained through collusion or fraud, or is
transparently invalid or was entered by a court lacking
subject matter jurisdiction; or
(D) authorize or permit the denial to any person of
the due process of law required by the Constitution.
(3) Any action not precluded under this subsection that
challenges an employment consent judgment or order described in
paragraph (1) shall be brought in the court, and if possible
before the judge, that entered such judgment or order. Nothing
in this subsection shall preclude a transfer of such action
pursuant to section 1404 of title 28, United States Code.
* * * * * * *
nondiscrimination in federal government employment
Sec. 717. (a) All personnel actions affecting employees or
applicants for employment (except with regard to aliens
employed outside the limits of the United States) in military
departments as defined in section 102 of title 5, United States
Code, in executive agencies as defined in section 105 of title
5, United States Code (including employees and applicants for
employment who are paid from nonappropriated funds), in the
United States Postal Service and the Postal Rate Commission, in
those units of the Government of the District of Columbia
having positions in the competitive service, and in those units
of the judicial branch of the Federal Government having
positions in the competitive service, in the Smithsonian
Institution, and in the Government Printing Office, the General
Accounting Office, and the Library of Congress shall be made
free from any discrimination based on race, color, religion,
sex, or national origin.
(b) Except as otherwise provided in this subsection, the
Civil Service Commission shall have authority to enforce the
provisions of subsection (a) through appropriate remedies,
including reinstatement or hiring of employees with or without
back pay, as will effectuate the policies of this section, and
shall issue such rules, regulations, orders and instructions as
it deems necessary and appropriate to carry out its
responsibilities under this section. The Civil Service
Commission shall--
(1) be responsible for the annual review and approval
of a national and regional equal employment opportunity
plan which each department and agency and each
appropriate unit referred to in subsection (a) of this
section shall submit in order to maintain an
affirmative program of equal employment opportunity for
all such employees and applicants for employment;
(2) be responsible for the review and evaluation of
the operation of all agency equal employment
opportunity programs, periodically obtaining and
publishing (on at least a semiannual basis) progress
reports from each such department, agency, or unit; and
(3) consult with and solicit the recommendations of
interested individuals, groups, and organizations
relating to equal employment opportunity.
The head of each such department, agency, or unit shall comply
with such rules, regulations, orders, and instructions which
shall include a provision that an employee or applicant for
employment shall be notified of any final action taken on any
complaint of discrimination filed by him thereunder. The plan
submitted by each department, agency, and unit shall include,
but not be limited to--
(1) provision for the establishment of training and
education programs designed to provide a maximum
opportunity for employees to advance so as to perform
at their highest potential; and
(2) a description of the qualifications in terms of
training and experience relating to equal employment
opportunity for the principal and operating officials
of each such department, agency, or unit responsible
for carrying out the equal employment opportunity
program and of the allocation of personnel and
resources proposed by such department, agency, or unit
to carry out its equal employment opportunity program.
With respect to employment in the Library of Congress,
authorities granted in this subsection to the Civil Service
Commission shall be exercised by the Librarian of Congress.
(c) Within 90 days of receipt of notice of final action taken
by a department, agency, or unit referred to in subsection
717(a), or by the Civil Service Commission upon an appeal from
a decision or order of such department, agency, or unit on a
complaint of discrimination based on race, color, religion, sex
or national origin, brought pursuant to subsection (a) of this
section, Executive Order 11478 or any succeeding Executive
orders, or after one hundred and eighty days from the filing of
the initial charge with the department, agency, or unit or with
the Civil Service Commission on appeal from a decision or order
of such department, agency, or unit until such time as final
action may be taken by a department, agency, or unit, an
employee or applicant for employment, if aggrieved by the final
disposition of his complaint, or by the failure to take final
action on his complaint, may file a civil action as provided in
section 706, in which civil action the head of the department,
agency, or unit, as appropriate, shall be the defendant.
(d) The provisions of section 706 (f) through (k), as
applicable, shall govern civil actions brought hereunder, and
the same interest to compensate for delay in payment shall be
available as in cases involving nonpublic parties..
(e) Nothing contained in this Act shall relieve any
Government agency or official of its or his primary
responsibility to assure nondiscrimination in employment as
required by the Constitution and statutes or of its or his
responsibilities under Executive Order 11478 relating to equal
employment opportunity in the Federal Government.
(f) Section 706(e)(3) shall apply to complaints of
discrimination in compensation under this section.
(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.
* * * * * * *
----------
AMERICANS WITH DISABILITIES ACT OF 1990
* * * * * * *
TITLE I--EMPLOYMENT
SEC. 101. DEFINITIONS.
As used in this title:
(1) Commission.--The term ``Commission'' means the
Equal Employment Opportunity Commission established by
section 705 of the Civil Rights Act of 1964 (42 U.S.C.
2000e-4).
(2) Covered entity.--The term ``covered entity''
means an employer, employment agency, labor
organization, or joint labor-management committee.
(3) Direct threat.--The term ``direct threat'' means
a significant risk to the health or safety of others
that cannot be eliminated by reasonable accommodation.
(4) Employee.--The term ``employee'' means an
individual employed by an employer. With respect to
employment in a foreign country, such term includes an
individual who is a citizen of the United States.
(5) Employer.--
(A) In general.--The term ``employer'' means
a person engaged in an industry affecting
commerce who has 15 or more employees for each
working day in each of 20 or more calendar
weeks in the current or preceding calendar
year, and any agent of such person, except
that, for two years following the effective
date of this title, an employer means a person
engaged in an industry affecting commerce who
has 25 or more employees for each working day
in each of 20 or more calendar weeks in the
current or preceding year, and any agent of
such person.
(B) Exceptions.--The term ``employer'' does
not include--
(i) the United States, a corporation
wholly owned by the government of the
United States, or an Indian tribe; or
(ii) a bona fide private membership
club (other than a labor organization)
that is exempt from taxation under
section 501(c) of the Internal Revenue
Code of 1986.
(6) Illegal use of drugs.--
(A) In general.--The term ``illegal use of
drugs'' means the use of drugs, the possession
or distribution of which is unlawful under the
Controlled Substances Act (21 U.S.C. 812). Such
term does not include the use of a drug taken
under supervision by a licensed health care
professional, or other uses authorized by the
Controlled Substances Act or other provisions
of Federal law.
(B) Drugs.--The term ``drug'' means a
controlled substance, as defined in schedules I
through V of section 202 of the Controlled
Substances Act.
(7) Person, etc.--The terms ``person'', ``labor
organization'', ``employment agency'', ``commerce'',
and ``industry affecting commerce'', shall have the
same meaning given such terms in section 701 of the
Civil Rights Act of 1964 (42 U.S.C. 2000e).
(8) Qualified individual.--The term ``qualified
individual'' means an individual who, with or without
reasonable accommodation, can perform the essential
functions of the employment position that such
individual holds or desires. For the purposes of this
title, consideration shall be given to the employer's
judgment as to what functions of a job are essential,
and if an employer has prepared a written description
before advertising or interviewing applicants for the
job, this description shall be considered evidence of
the essential functions of the job.
(9) Reasonable accommodation.--The term ``reasonable
accommodation'' may include--
(A) making existing facilities used by
employees readily accessible to and usable by
individuals with disabilities; and
(B) job restructuring, part-time or modified
work schedules, reassignment to a vacant
position, acquisition or modification of
equipment or devices, appropriate adjustment or
modifications of examinations, training
materials or policies, the provision of
qualified readers or interpreters, and other
similar accommodations for individuals with
disabilities.
(10) Undue hardship.--
(A) In general.--The term ``undue hardship''
means an action requiring significant
difficulty or expense, when considered in light
of the factors set forth in subparagraph (B).
(B) Factors to be considered.--In determining
whether an accommodation would impose an undue
hardship on a covered entity, factors to be
considered include--
(i) the nature and cost of the
accommodation needed under this Act;
(ii) the overall financial resources
of the facility or facilities involved
in the provision of the reasonable
accommodation; the number of persons
employed at such facility; the effect
on expenses and resources, or the
impact otherwise of such accommodation
upon the operation of the facility;
(iii) the overall financial resources
of the covered entity; the overall size
of the business of a covered entity
with respect to the number of its
employees; the number, type, and
location of its facilities; and
(iv) the type of operation or
operations of the covered entity,
including the composition, structure,
and functions of the workforce of such
entity; the geographic separateness,
administrative, or fiscal relationship
of the facility or facilities in
question to the covered entity.
(11) Demonstrates.--The term ``demonstrates'' means
meets the burdens of production and persuasion.
SEC. 102. DISCRIMINATION.
(a) General Rule.--No covered entity shall discriminate
against a qualified individual on the basis of disability in
regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training,
and other terms, conditions, and privileges of employment.
(b) Construction.--As used in subsection (a), the term
``discriminate against a qualified individual on the basis of
disability'' includes--
(1) limiting, segregating, or classifying a job
applicant or employee in a way that adversely affects
the opportunities or status of such applicant or
employee because of the disability of such applicant or
employee;
(2) participating in a contractual or other
arrangement or relationship that has the effect of
subjecting a covered entity's qualified applicant or
employee with a disability to the discrimination
prohibited by this title (such relationship includes a
relationship with an employment or referral agency,
labor union, an organization providing fringe benefits
to an employee of the covered entity, or an
organization providing training and apprenticeship
programs);
(3) utilizing standards, criteria, or methods of
administration--
(A) that have the effect of discrimination on
the basis of disability; or
(B) that perpetuate the discrimination of
others who are subject to common administrative
control;
(4) excluding or otherwise denying equal jobs or
benefits to a qualified individual because of the known
disability of an individual with whom the qualified
individual is known to have a relationship or
association;
(5)(A) not making reasonable accommodations to the
known physical or mental limitations of an otherwise
qualified individual with a disability who is an
applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such
covered entity; or
(B) denying employment opportunities to a job
applicant or employee who is an otherwise qualified
individual with a disability, if such denial is based
on the need of such covered entity to make reasonable
accommodation to the physical or mental impairments of
the employee or applicant;
(6) using qualification standards, employment tests
or other selection criteria that screen out or tend to
screen out an individual with a disability or a class
of individuals with disabilities unless the standard,
test or other selection criteria, as used by the
covered entity, is shown to be job-related for the
position in question and is consistent with business
necessity; and
(7) failing to select and administer tests concerning
employment in the most effective manner to ensure that,
when such test is administered to a job applicant or
employee who has a disability that impairs sensory,
manual, or speaking skills, such test results
accurately reflect the skills, aptitude, or whatever
other factor of such applicant or employee that such
test purports to measure, rather than reflecting the
impaired sensory, manual, or speaking skills of such
employee or applicant (except where such skills are the
factors that the test purports to measure).
(c) Covered Entities in Foreign Countries.--
(1) In general.--It shall not be unlawful under this
section for a covered entity to take any action that
constitutes discrimination under this section with
respect to an employee in a workplace in a foreign
country if compliance with this section would cause
such covered entity to violate the law of the foreign
country in which such workplace is located.
(2) Control of corporation.--
(A) Presumption.--If an employer controls a
corporation whose place of incorporation is a
foreign country, any practice that constitutes
discrimination under this section and is
engaged in by such corporation shall be
presumed to be engaged in by such employer.
(B) Exception.--This section shall not apply
with respect to the foreign operations of an
employer that is a foreign person not
controlled by an American employer.
(C) Determination.--For purposes of this
paragraph, the determination of whether an
employer controls a corporation shall be based
on--
(i) the interrelation of operations;
(ii) the common management;
(iii) the centralized control of
labor relations; and
(iv) the common ownership or
financial control,
of the employer and the corporation.
(d) Medical Examinations and Inquiries.--
(1) In general.--The prohibition against
discrimination as referred to in subsection (a) shall
include medical examinations and inquiries.
(2) Preemployment.--
(A) Prohibited examination or inquiry.--
Except as provided in paragraph (3), a covered
entity shall not conduct a medical examination
or make inquiries of a job applicant as to
whether such applicant is an individual with a
disability or as to the nature or severity of
such disability.
(B) Acceptable inquiry.--A covered entity may
make preemployment inquiries into the ability
of an applicant to perform job-related
functions.
(3) Employment entrance examination.--A covered
entity may require a medical examination after an offer
of employment has been made to a job applicant and
prior to the commencement of the employment duties of
such applicant, and may condition an offer of
employment on the results of such examination, if--
(A) all entering employees are subjected to
such an examination regardless of disability;
(B) information obtained regarding the
medical condition or history of the applicant
is collected and maintained on separate forms
and in separate medical files and is treated as
a confidential medical record, except that--
(i) supervisors and managers may be
informed regarding necessary
restrictions on the work or duties of
the employee and necessary
accommodations;
(ii) first aid and safety personnel
may be informed, when appropriate, if
the disability might require emergency
treatment; and
(iii) government officials
investigating compliance with this Act
shall be provided relevant information
on request; and
(C) the results of such examination are used
only in accordance with this title.
(4) Examination and inquiry.--
(A) Prohibited examinations and inquiries.--A
covered entity shall not require a medical
examination and shall not make inquiries of an
employee as to whether such employee is an
individual with a disability or as to the
nature or severity of the disability, unless
such examination or inquiry is shown to be job-
related and consistent with business necessity.
(B) Acceptable examinations and inquiries.--A
covered entity may conduct voluntary medical
examinations, including voluntary medical
histories, which are part of an employee health
program available to employees at that work
site. A covered entity may make inquiries into
the ability of an employee to perform job-
related functions.
(C) Requirement.--Information obtained under
subparagraph (B) regarding the medical
condition or history of any employee are
subject to the requirements of subparagraphs
(B) and (C) of paragraph (3).
(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.
* * * * * * *
SEC. 107. ENFORCEMENT.
(a) Powers, Remedies, and Procedures.--The powers, remedies,
and procedures set forth in sections 705, 706, 707, 709, and
710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-
5, 2000e-6, 2000e-8, and 2000e-9) shall be the powers,
remedies, and procedures this title provides to the Commission,
to the Attorney General, or to any person alleging
discrimination on the basis of disability in violation of any
provision of this Act, or regulations promulgated under section
106, concerning employment.
(b) Coordination.--The agencies with enforcement authority
for actions which allege employment discrimination under this
title and under the Rehabilitation Act of 1973 shall develop
procedures to ensure that administrative complaints filed under
this title and under the Rehabilitation Act of 1973 are dealt
with in a manner that avoids duplication of effort and prevents
imposition of inconsistent or conflicting standards for the
same requirements under this title and the Rehabilitation Act
of 1973. The Commission, the Attorney General, and the Office
of Federal Contract Compliance Programs shall establish such
coordinating mechanisms (similar to provisions contained in the
joint regulations promulgated by the Commission and the
Attorney General at part 42 of title 28 and part 1691 of title
29, Code of Federal Regulations, and the Memorandum of
Understanding between the Commission and the Office of Federal
Contract Compliance Programs dated January 16, 1981 (46 Fed.
Reg. 7435, January 23, 1981)) in regulations implementing this
title and Rehabilitation Act of 1973 not later than 18 months
after the date of enactment of this Act.
(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.
* * * * * * *
TITLE V--MISCELLANEOUS PROVISIONS
* * * * * * *
SEC. 503. PROHIBITION AGAINST RETALIATION AND COERCION.
(a) Retaliation.--No person shall discriminate against any
individual because such individual has opposed any act or
practice made unlawful by this Act or because such individual
made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
Act.
(b) Interference, Coercion, or Intimidation.--It shall be
unlawful to coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of, or on account of
his or her having exercised or enjoyed, or on account of his or
her having aided or encouraged any other individual in the
exercise or enjoyment of, any right granted or protected by
this Act.
(c) Remedies and Procedures.--[The remedies]
(1) In general._Except as provided in paragraph (2),
the remedies and procedures available under sections
107, 203, and 308 of this Act shall be available to
aggrieved persons for violations of subsections (a) and
(b), with respect to title I, title II and title III,
respectively.
(2) Certain anti-retaliation claims.--Section 107(c)
shall apply to claims under section 102(e)(1) with
respect to title I.
* * * * * * *
----------
REHABILITATION ACT OF 1973
* * * * * * *
TITLE V--RIGHTS AND ADVOCACY
employment of individuals with disabilities
Sec. 501. (a) There is established within the Federal
Government an Interagency Committee on Employees who are
Individuals with Disabilities (hereinafter in this section
referred to as the ``Committee''), comprised of such members as
the President may select, including the following (or their
designees whose positions are Executive Level IV or higher):
the Chairman of the Equal Employment Opportunity Commission,
(hereafter in this section referred to as the ``Commission''),
the Director of the Office of Personnel Management, the
Secretary of Veterans Affairs, the Secretary of Labor, the
Secretary of Education, and the Secretary of Health and Human
Services. Either the Director of the Office of Personnel
Management and the Chairman of the Commission shall serve as
co-chairpersons of the Committee or the Director or Chairman
shall serve as the sole chairperson of the Committee, as the
Director and Chairman jointly determine, from time to time, to
be appropriate. The resources of the President's Disability
Employment Partnership Board and the President's Committee for
People with Intellectual Disabilities shall be made fully
available to the Committee. It shall be the purpose and
function of the Committee (1) to provide a focus for Federal
and other employment of individuals with disabilities, and to
review, on a periodic basis, in cooperation with the
Commission, the adequacy of hiring, placement, and advancement
practices with respect to individuals with disabilities, by
each department, agency, and instrumentality in the executive
branch of Government and the Smithsonian Institution, and to
insure that the special needs of such individuals are being
met; and (2) to consult with the Commission to assist the
Commission to carry out its responsibilities under subsections
(b), (c), and (d) of this section. On the basis of such review
and consultation, the Committee shall periodically make to the
Commission such recommendations for legislative and
administrative changes as it deems necessary or desirable. The
Commission shall timely transmit to the appropriate committees
of Congress any such recommendations.
(b) Each department, agency, and instrumentality (including
the United States Postal Service and the Postal Regulatory
Commission) in the executive branch and the Smithsonian
Institution shall, within one hundred and eighty days after the
date of enactment of this Act, submit to the Commission and to
the Committee an affirmative action program plan for the
hiring, placement, and advancement of individuals with
disabilities in such department, agency, instrumentality, or
Institution. Such plan shall include a description of the
extent to which and methods whereby the special needs of
employees who are individuals with disabilities are being met.
Such plan shall be updated annually, and shall be reviewed
annually and approved by the Commission, if the Commission
determines, after consultation with the Committee, that such
plan provides sufficient assurances, procedures, and
commitments to provide adequate hiring, placement, and
advancement opportunities for individuals with disabilities.
(c) The Commission, after consultation with the Committee,
shall develop and recommend to the Secretary for referral to
the appropriate State agencies, policies and procedures which
will facilitate the hiring, placement, and advancement in
employment of individuals who have received rehabilitation
services under State vocational rehabilitation programs,
veterans' programs, or any other program for individuals with
disabilities, including the promotion of job opportunities for
such individuals. The Secretary shall encourage such State
agencies to adopt and implement such policies and procedures.
(d) The Commission, after consultation with the Committee,
shall, on June 30, 1974, and at the end of each subsequent
fiscal year, make a complete report to the appropriate
committees of the Congress with respect to the practices of and
achievements in hiring, placement, and advancement of
individuals with disabilities by each department, agency, and
instrumentality and the Smithsonian Institution and the
effectiveness of the affirmative action programs required by
subsection (b) of this section, together with recommendations
as to legislation which have been submitted to the Commission
under subsection (a) of this section, or other appropriate
action to insure the adequacy of such practices. Such report
shall also include an evaluation by the Committee of the
effectiveness of the activities of the Commission under
subsection (b) and (c) of this section.
(e) An individual who, as a part of an individualized plan
for employment under a State plan approved under this Act,
participates in a program of unpaid work experience in a
Federal agency, shall not, by reason thereof, be considered to
be a Federal employee or to be subject to the provisions of law
relating to Federal employment, including those relating to
hours of work, rates of compensation, leaves, unemployment
compensation, and Federal employee benefits.
(f) The standards used to determine whether this section has
been violated in a complaint alleging nonaffirmative action
employment discrimination under this section shall be the
standards applied under title I of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111 et seq.), including
the standards of causation or methods of proof applied under
section 102(e) of that Act (42 U.S.C. 12112(e)), and the
provisions of sections 501 through 504, and 510, of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204
and 12210), as such sections relate to employment.
employment under federal contracts
Sec. 503. (a) Any contract in excess of $10,000 entered into
by any Federal department or agency for the procurement of
personal property and nonpersonal services (including
construction) for the United States shall contain a provision
requiring that the party contracting with the United States
shall take affirmative action to employ and advance in
employment qualified individuals with disabilities. The
provisions of this section shall apply to any subcontract in
excess of $10,000 entered into by a prime contractor in
carrying out any contract for the procurement of personal
property and nonpersonal services (including construction) for
the United States. The President shall implement the provisions
of this section by promulgating regulations within ninety days
after the date of enactment of this section.
(b) If any individual with a disability believes any
contractor has failed or refused to comply with the provisions
of a contract with the United States, relating to employment of
individuals with disabilities, such individual may file a
complaint with the Department of Labor. The Department shall
promptly investigate such complaint and shall take such action
thereon as the facts and circumstances warrant, consistent with
the terms of such contract and the laws and regulations
applicable thereto.
(c)(1) The requirements of this section may be waived, in
whole or in part, by the President with respect to a particular
contract or subcontract, in accordance with guidelines set
forth in regulations which the President shall prescribe, when
the President determines that special circumstances in the
national interest so require and states in writing the reasons
for such determination.
(2)(A) The Secretary of Labor may waive the requirements of
the affirmative action clause required by regulations
promulgated under subsection (a) with respect to any of a prime
contractor's or subcontractor's facilities that are found to be
in all respects separate and distinct from activities of the
prime contractor or subcontractor related to the performance of
the contract or subcontract, if the Secretary of Labor also
finds that such a waiver will not interfere with or impede the
effectuation of this Act.
(B) Such waivers shall be considered only upon the request of
the contractor or subcontractor. The Secretary of Labor shall
promulgate regulations that set forth the standards used for
granting such a waiver.
(d) The standards used to determine whether this section has
been violated in a complaint alleging nonaffirmative action
employment discrimination under this section shall be the
standards applied under title I of the Americans with
Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) , including
the standards of causation or methods of proof applied under
section 102(e) of that Act (42 U.S.C. 12112(e)), and the
provisions of sections 501 through 504, and 510, of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12201-12204
and 12210), as such sections relate to employment.
(e) The Secretary shall develop procedures to ensure that
administrative complaints filed under this section and under
the Americans with Disabilities Act of 1990 are dealt with in a
manner that avoids duplication of effort and prevents
imposition of inconsistent or conflicting standards for the
same requirements under this section and the Americans with
Disabilities Act of 1990.
nondiscrimination under federal grants and programs
Sec. 504. (a) No otherwise qualified individual with a
disability in the United States, as defined in section 7(20),
shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity
receiving Federal financial assistance or under any program or
activity conducted by any Executive agency or by the United
States Postal Service. The head of each such agency shall
promulgate such regulations as may be necessary to carry out
the amendments to this section made by the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Act of
1978. Copies of any proposed regulation shall be submitted to
appropriate authorizing committees of the Congress, and such
regulation may take effect no earlier than the thirtieth day
after the date on which such regulation is so submitted to such
committees.
(b) For the purposes of this section, the term ``program or
activity'' means all of the operations of--
(1)(A) a department, agency, special purpose
district, or other instrumentality of a State or of a
local government; or
(B) the entity of such State or local government that
distributes such assistance and each such department or
agency (and each other State or local government
entity) to which the assistance is extended, in the
case of assistance to a State or local government;
(2)(A) a college, university, or other postsecondary
institution, or a public system of higher education; or
(B) a local educational agency (as defined in section
8101 of the Elementary and Secondary Education Act of
1965), system of vocational education, or other school
system;
(3)(A) an entire corporation, partnership, or other
private organization, or an entire sole
proprietorship--
(i) if assistance is extended to such
corporation, partnership, private organization,
or sole proprietorship as a whole; or
(ii) which is principally engaged in the
business of providing education, health care,
housing, social services, or parks and
recreation; or
(B) the entire plant or other comparable,
geographically separate facility to which Federal
financial assistance is extended, in the case of any
other corporation, partnership, private organization,
or sole proprietorship; or
(4) any other entity which is established by two or
more of the entities described in paragraph (1), (2),
or (3);
any part of which is extended Federal financial assistance.
(c) Small providers are not required by subsection (a) to
make significant structural alterations to their existing
facilities for the purpose of assuring program accessibility,
if alternative means of providing the services are available.
The terms used in this subsection shall be construed with
reference to the regulations existing on the date of the
enactment of this subsection.
(d) The standards used to determine whether this section has
been violated in a complaint alleging employment discrimination
under this section shall be the standards applied under title I
of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111
et seq.) , including the standards of causation or methods of
proof applied under section 102(e) of that Act (42 U.S.C.
12112(e)), and the provisions of sections 501 through 504, and
510, of the Americans with Disabilities Act of 1990 (42 U.S.C.
12201-12204 and 12210), as such sections relate to employment.
* * * * * * *
MINORITY VIEWS
Introduction
Every worker should be protected from discrimination at
their job. Congress enacted protections against workplace
discrimination in Title VII of the Civil Rights Act of 1964
(Title VII), the Age Discrimination in Employment Act of 1967
(ADEA), the Rehabilitation Act of 1973 (Rehab Act), and the
Americans with Disabilities Act of 1990 (ADA), among other
nondiscrimination laws. Consequently, it is already against the
law, as it should be, either to discriminate in the workplace
because of an individual's age or disability, or to retaliate
against someone because of a prior complaint alleging
discrimination. Older Americans are assets in the workforce,
and Committee Republicans are committed to eliminating illegal
discrimination in the workplace to ensure a fair, productive,
and competitive workforce.
Unfortunately, Committee Democrats are again choosing to
promote their pro-trial lawyer agenda by advancing legislation
that masquerades as a protection for a specific group of
workers. H.R. 2062, the Protecting Older Workers Against
Discrimination Act (POWADA), is yet another example of a one-
size-fits-all federal mandate that disregards real-world
workplace experience and decades of Supreme Court precedent.
Careful Committee examination and scrutiny of any
legislation is necessary to determine whether it is needed and
whether it appropriately and effectively addresses the relevant
issues. By all those metrics, in the case of H.R. 2062, the
Committee majority has failed miserably. Despite the sweeping
scope and controversial legal implications of H.R. 2062,
Committee Democrats chose not to hold a hearing solely
dedicated to examining the bill prior to the Committee markup.
Instead, there was a wide-ranging subcommittee-level hearing
that covered several other pieces of legislation unrelated to
H.R. 2062.\1\ Regrettably, Committee Republicans were only
allowed to invite one witness for the entire hearing to cover
the many bills that were included on the agenda. This
represents an appalling lack of seriousness on the part of
Committee Democrats.
---------------------------------------------------------------------------
\1\See Fighting for Fairness: Examining Legislation to Confront
Workplace Discrimination: Hearing Before the Subcomm. on Civ. Rights &
Hum. Serv. & the Subcomm. on Workforce Protections of the H. Comm. on
Educ. & Lab., 117th Cong. (2021).
---------------------------------------------------------------------------
Like other legislation in the 117th Congress, H.R. 2062 has
been rushed through this Committee without necessary
examination, discussion, or consideration. H.R. 2062 begs for
reliable data and evidence, thoughtful deliberation, and
genuine consideration. To reduce and eliminate workplace
discrimination, Congress must ensure that nondiscrimination
statutes allow workers to remedy unlawful discrimination
effectively. H.R. 2062 fails miserably in this regard. The
legislation does nothing to improve our nondiscrimination laws
and will not help older workers. The bill's title and
provisions are yet another case of false advertising and empty
promises. For these reasons, and as set forth below, the House
should not consider or pass H.R. 2062.
Concerns With H.R. 2062
EVIDENCE AND DATA ARE LACKING
The Committee has little to no evidence or data indicating
this bill is necessary to ensure workers are protected. In
fact, a Democrat-invited witness who testified on H.R. 2062 at
the previously mentioned hearing covering many unrelated bills
admitted that the impact of the Supreme Court's decision in
Gross v. FBL Financial Services, Inc.\2\ is unknown. Laurie
McCann, Senior Attorney, AARP Foundation, testifying on behalf
of AARP, said in her written testimony:
---------------------------------------------------------------------------
\2\557 U.S. 767 (2009).
For several reasons, it is difficult to quantify the
impact that the Gross decision has had on the number of
older workers who bring cases, and the number of those
who win them. . . . [I]t is difficult to separate out
the impact of the Gross decision from larger economic
forces. The Gross decision was issued in 2009 at the
same time as massive, recession-spawned lay-offs that
resulted in record unemployment levels among older
workers, which led to a jump in the number of ADEA
charges filed with the EEOC.\3\
---------------------------------------------------------------------------
\3\Fighting for Fairness: Examining Legislation to Confront
Workplace Discrimination: Hearing Before the Subcomm. on Civ. Rights &
Hum. Serv. & the Subcomm. on Workforce Protections of the H. Comm. on
Educ. & Lab., 117th Cong. (2021) (statement of Laurie McCann, Senior
Attorney, AARP Found., at 7) [hereinafter McCann Statement]. Ms. McCann
states that POWADA was ``originally proposed by Senators Harkin and
Grassley after extensive negotiations with both civil rights and
business groups.'' Id. at 9. However, these same business groups sent a
letter to the Committee stating that ``no agreement was reached between
the business group representatives and the other participants in the
negotiation'' with respect to POWADA. Eliminating Barriers to
Employment: Opening Doors to Opportunity: Hearing Before the H. Comm.
on Educ. & Lab., 116th Cong. 145 (2019) (letter from U.S. Chamber of
Commerce, HR Pol'y Ass'n, & Society for Hum. Resource Mgmt. to Chairman
Bobby Scott & Ranking Member Virginia Foxx (June 4, 2019)).
Indeed, age discrimination charges filed with the Equal
Employment Opportunity Commission (EEOC) as a percentage of all
charges filed with the agency were approximately the same the
11 years before Gross as the 11 years after Gross.\4\ This data
does not indicate that individuals have been discouraged from
filing age discrimination charges following Gross. In addition,
there has been an uptick in retaliation charges under Title VII
filed with EEOC as a percentage of all charges filed since the
Supreme Court's decision in University of Texas Southwestern
Medical Center v. Nassar, 570 U.S. 338 (2013).\5\ Again, this
data does not indicate that individuals have been discouraged
from filing Title VII retaliation charges after Nassar.
---------------------------------------------------------------------------
\4\EEOC, Charge Statistics (Charges filed with EEOC) FY 1997
Through FY 2020, https://www.eeoc.gov/eeoc/statistics/enforcement/
charges.cfm.
\5\Id.
---------------------------------------------------------------------------
More broadly, employment trends for older workers are
positive in recent decades, according to the Bureau of Labor
Statistics:\6\
---------------------------------------------------------------------------
\6\Bureau of Lab. Stat., U.S. Dep't of Lab., How Are Our Older
Workers Doing? (May 20, 2019), https://blogs.bls.gov/blog/2019/05/20/
how-are-our-older-workers-doing/.
---------------------------------------------------------------------------
``In 1998, median weekly earnings of older
full-time employees were 77 percent of the median for
workers age 16 and up. In 2018, older workers earned 7
percent more than the median for all workers.''
``For workers age 65 and older, employment
tripled from 1988 to 2018, while employment among
younger workers grew by about a third.''
``Among people age 75 and older, the number
of employed people nearly quadrupled, increasing from
461,000 in 1988 to 1.8 million in 2018.''
``The labor force participation rate for
older workers has been rising steadily since the late
1990s. Participation rates for younger age groups
either declined or flattened over this period.''
``Over the past 20 years, the number of
older workers on full-time work schedules grew two and
a half times faster than the number working part
time.''
``Full-timers now account for a majority
among older workers--61 percent in 2018, up from 46
percent in 1998.''
OLDER WORKERS ARE PROTECTED UNDER CURRENT LAW
Contrary to assertions by Democrats, Gross has not narrowed
the protections of the ADEA and Title VII. The Supreme Court
made clear in Gross that its ruling did not increase the burden
of persuasion on plaintiffs in ADEA cases: ``There is no
heightened evidentiary requirement for ADEA plaintiffs to
satisfy their burden of persuasion that age was the `but-for'
cause of the employer's adverse action, . . . , and we imply
none.''\7\
---------------------------------------------------------------------------
\7\557 U.S. at 178 n.4.
---------------------------------------------------------------------------
Indeed, with respect to litigation, evidence is lacking
that individuals have been discouraged from filing age
discrimination or retaliation lawsuits since the Gross and
Nassar decisions, or that they are finding it harder to win
these cases. Courts continue to rule in favor of employees in
ADEA\8\ and Title VII retaliation\9\ cases following Gross and
Nassar. In fact, courts have ruled for plaintiffs in cases that
might have been mixed-motive cases in the absence of Gross, but
the courts nonetheless ruled the plaintiffs' claims were
sufficient under Gross.\10\
---------------------------------------------------------------------------
\8\See, e.g., Martinez v. UPMC Susquehanna, 986 F.3d 261 (3d Cir.
2021) (employee stated plausible ADEA claim); Willard v. Huntington
Ford, Inc., 952 F.3d 795 (6th Cir. 2020) (denying summary judgment in
ADEA case where genuine issues of material fact existed regarding
employer's proffered reasons for firing plaintiff); Westmoreland v. TWC
Admin. LLC, 924 F.3d 718 (4th Cir. 2019) (evidence was sufficient to
support jury's finding that employer's proffered reason for firing
employee was pretext for age discrimination); Steele v. Mattis, 899
F.3d 943 (D.C. Cir. 2018) (denying summary judgment where genuine
issues of material fact existed regarding whether age was true reason
for professor's discharge); H.R. 3721, The Protecting Older Workers
Against Discrimination Act: Hearing Before the Subcomm. on Health,
Emp., Lab. & Pensions of the H. Comm. on Educ. & Lab., 111th Cong. 21-
22 (2010) (statement of Eric S. Dreiband, Partner, Jones Day Law Firm)
(collecting cases in which federal courts ruled in favor of plaintiffs
in ADEA litigation after Gross); Barbara T. Lindemann et al.,
Employment Discrimination Law Ch. 12.X.B.1 (5th ed. 2012) (collecting
cases on the plaintiff's prima facie case in age discrimination
litigation).
\9\See, e.g., Strickland v. City of Detroit, 995 F.3d 495 (6th Cir.
2021) (genuine issue of material fact whether the city's proffered
reason for disciplining plaintiff actually motivated the city's
conduct); Collymore v. City of New York, 767 Fed.Appx. 42 (2d Cir.
2019) (employee sufficiently alleged causal connection between
protected activity and retaliatory acts to state a claim for
retaliation under Title VII); Mys v. Mich. Dep't of State Police, 886
F.3d 591 (6th Cir. 2018) (record contains sufficient evidence of
retaliation to support jury's verdict); Connelly v. Lane Constr. Corp.,
809 F.3d 780 (3d Cir. 2016) (employee stated plausible Title VII
retaliation claim); Garayalde-Rijos v. Municipality of Carolina, 747
F.3d 15 (1st Cir. 2014) (employee plausibly alleged Title VII
retaliation claim against city).
\10\See, e.g., Mora v. Jackson Memorial Found., Inc., 597 F.3d
1201, 1205 (11th Cir. 2010) (even after Gross, defendant not entitled
to summary judgment where there is a disputed question of material
fact); Baker v. Silver Oak Senior Living Mgt. Co., 581 F.3d 684 (8th
Cir. 2009) (under Gross, plaintiff presented submissable case of age
discrimination for jury trial).
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H.R. 2062 HARMS WORKERS WHILE ENRICHING TRIAL LAWYERS
Under Gross and Nassar, a plaintiff must prove age or a
retaliatory motive was the ``but-for,'' or decisive, cause of
the adverse employment action in ADEA and Title VII retaliation
cases, respectively. H.R. 2062 overturns these Supreme Court
decisions by allowing a plaintiff to prove age or the
retaliatory motive was merely a motivating factor of the
adverse employment action. Thus, the bill allows ``mixed-
motive'' claims in these cases, as well as in ADA and Rehab Act
cases.
If a plaintiff proves a mixed-motive claim under H.R. 2062,
then he or she may be entitled to monetary damages,
reinstatement, hiring, promotion, other payments, and
attorneys' fees and costs. However, if the employer
demonstrates it would have taken the same action in the absence
of the impermissible motivating factor (such as age or a
retaliatory motive), then the plaintiff may only receive
declaratory relief, injunctive relief (not to include requiring
an admission, reinstatement, hiring, or promotion), and
attorneys' fees and costs; no monetary damages or other
payments may be rewarded.
Under H.R. 2062, the only party who will be paid in nearly
all mixed-motive cases is the plaintiff's attorneys, because
most employers will be able to demonstrate that they would have
taken the same action in the absence of the impermissible
motivating factor. This raises the question of whether the
legislation will benefit workers--who will, in nearly all
cases, not receive any monetary damages under H.R. 2062.
Lawrence Z. Lorber, Senior Counsel, Seyfarth Shaw LLP, raised
this concern in a statement:
Another significant concern about POWADA which should
be addressed is that including a mixed-motive theory
into the ADEA, and the other statutes at issue, will
simply encourage needless litigation [in] which, by
statute, the only successful participant will be the
plaintiff's attorney.\11\
---------------------------------------------------------------------------
\11\Eliminating Barriers to Employment: Opening Doors to
Opportunity: Hearing Before the H. Comm. on Educ. & Lab., 116th Cong.
129 (2019) (statement of Lawrence Z. Lorber, Senior Counsel, Seyfarth
Shaw LLP) [hereinafter Lorber Statement].
James A. Paretti, Jr., of the Workforce Policy Institute
also discussed in a statement how POWADA slants the law against
---------------------------------------------------------------------------
workers:
[A]s a matter of substantive law, we are concerned
that the bill as drafted would in too many instances
result in an employee who has proven that he or she was
the victim of age discrimination recovering nothing
under federal law, and certainly less than they would
under the current-law Gross standard . . . . To so
limit the recovery of an individual who has proven that
his or her employer factored age into its employment
decision hardly seems to ``protect'' such workers.
Indeed, the only party who ``wins''' under such a
scenario is the plaintiffs' bar.\12\
\12\Id. at 141-42 (letter from James A. Paretti, Jr., Shareholder,
Workforce Pol'y Inst., Littler Mendelson, P.C., to Hon. Robert C.
``Bobby'' Scott, Chairman, H. Comm. on Educ. & Lab.) [hereinafter
Paretti Letter].
It is a legitimate question whether H.R. 2062 was written
to ensure that the plaintiff's attorneys are paid even if the
impermissible factor was not the ``but-for'' cause of the
adverse employment action. As G. Roger King, Senior Labor and
Employment Counsel, HR Policy Association, wrote in a
memorandum to Republican Leader Virginia Foxx (R-NC): ``The
only beneficiaries from [POWADA] would appear to be plaintiff's
attorneys--certainly not a protected `class' under any
appropriate definition of the term.''\13\ Moreover, adding
insult to injury, the plaintiff will owe taxes on any
attorneys' fees awarded even though the plaintiff has not
received any monetary award.\14\
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\13\Memorandum from G. Roger King, Senior Lab. & Emp't Couns., HR
Pol'y Ass'n, to Hon. Virginia Foxx, Ranking Member, H. Comm. on Educ. &
Lab., at 1 (June 10, 2019) (on file) [hereinafter King Memo].
\14\See Lorber Statement, supra note 11, at 129.
---------------------------------------------------------------------------
Notably, Gross and Nassar eliminated the ``same action''
defense for employers in ADEA and Title VII retaliation cases,
which benefitted plaintiffs, while H.R. 2062 restores this
defense, which benefits defendants. Restoring the ``same
action'' defense will likely render the mixed-motive standard
irrelevant for employees, because nearly all employers will be
able to demonstrate they would have taken the same employment
action in the absence of the impermissible factor, a showing
which therefore eliminates monetary damages for plaintiffs
under the bill.
H.R. 2062 WILL PROMOTE AND INCREASE FRIVOLOUS LITIGATION
Retaliation cases are particularly ill-suited to allow
mixed-motive causation, which would increase frivolous
litigation rather than benefitting workers. Retaliation is the
most frequently claimed violation for those filing charges with
EEOC.\15\ Retaliation claims inherently involve ``differing
explanations'' by the employee and employer.\16\ In a
retaliation claim, the employee will have already made a
discrimination complaint or availed him or herself of processes
to address alleged discrimination, so it will be a mere
formality for the employee to plead that a subsequent adverse
employment action is retaliation. The business owner will be
faced with a nearly impossible task of proving that the
employee's discrimination complaint was not a motivating factor
in taking the subsequent adverse employment action.
---------------------------------------------------------------------------
\15\EEOC, Charge Statistics (Charges filed with EEOC) FY 1997
Through FY 2020, supra note 4.
\16\Lorber Statement, supra note 11, at 131.
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The Supreme Court observed in Nassar that in retaliation
cases ``lessening the causation standard could . . . contribute
to the filing of frivolous claims, which would siphon resources
from efforts by employer, administrative agencies, and courts
to combat workplace harassment.''\17\ Not only would more
frivolous claims increase costs, but also these resources would
not be available to prevent harassment and other forms of
discrimination, defeating the purpose of H.R. 2062 claimed by
its advocates to reduce workplace discrimination.
---------------------------------------------------------------------------
\17\570 U.S. at 358.
---------------------------------------------------------------------------
The Court was also concerned that permitting mixed-motive
claims in retaliation cases would encourage plaintiffs to game
the system by filing anticipatory discrimination claims:
Consider . . . an employee who knows that he or she
is about to be fired for poor performance, given a
lower pay grade, or even just transferred to a
different assignment or location. To forestall that
lawful action, he or she might be tempted to make an
unfounded charge of racial, sexual, or religious
discrimination; then, when the unrelated employment
action comes, the employee could allege that it is
retaliation. . . . [T]hat claim could be established by
a lessened causation standard, all in order to prevent
the undesired change in employment circumstances. Even
if the employer could escape judgment after trial, the
lessened causation standard would make it far more
difficult to dismiss dubious claims at the summary
judgment stage. . . . It would be inconsistent with the
structure and operation of Title VII to so raise the
costs, both financial and reputational, on an employer
whose actions were not in fact the result of any
discriminatory or retaliatory intent.\18\
---------------------------------------------------------------------------
\18\Id. at 358-59.
The Court noted the significance of the ``lessened
causation standard'' making it ``far more difficult to dismiss
dubious claims at the summary judgment stage.'' Mixed-motive
claims are a fallback position for plaintiffs to survive a
summary judgement motion by the employer. If summary judgment
is not granted to the employer, most employers will settle the
case because they will be faced with the risk and expense of a
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trial. Mr. King explained this dynamic:
The critical tactical point in many of these cases is
for a plaintiff's attorney to get past an employer's
motion for summary judgment. If a plaintiff's attorney
can succeed in defeating an employer's summary judgment
motion, in virtually every case, the next step is for
the plaintiff's attorney to attempt to extract a large
settlement payment from the employer. Employers often
are inclined to make such payments to avoid large
expenses from protracted litigation. Often a large
portion of any such settlement goes to the plaintiff's
lawyer, with employees and individuals receiving small
payments, if any.\19\
---------------------------------------------------------------------------
\19\King Memo, supra note 13, at 2.
While plaintiffs will receive no monetary damages in most
mixed-motive court judgments, most settlements in these cases
will not provide much in the way of payments for plaintiffs
either.
THE MIXED-MOTIVE STANDARD IN H.R. 2062 CONTRADICTS THE ADEA
H.R. 2062 adds the mixed-motive standard of proof to the
ADEA which is contrary to the current statutory scheme. Many
employment actions have effects that correlate with age, which
the ADEA itself acknowledges. Allowing mixed-motive claims in
these situations would make defending these cases
extraordinarily difficult, if not impossible, for employers.
The ADEA states that it is lawful for an employer to take
an employment action otherwise prohibited by the statute if the
differential treatment is ``based on reasonable factors other
than age.''\20\ The Supreme Court in Meacham v. Knolls Atomic
Power Laboratory (2008) noted the uniqueness of ADEA claims:
\20\29 U.S.C. Sec. 623(f)(1).
Congress took account of the distinctive nature of
age discrimination, and the need to preserve a fair
degree of leeway for employment decisions with effects
that correlate with age, when it put the RFOA
[reasonable factor other than age] clause into the
ADEA, ``significantly narrow[ing] its coverage.''\21\
---------------------------------------------------------------------------
\21\554 U.S. 84, 102 (2008) (citation omitted).
Allowing mixed-motive claims in age discrimination cases
will eliminate the flexibility Congress intended when it
adopted the ADEA. Mr. Lorber commented on the RFOA provision in
---------------------------------------------------------------------------
the ADEA:
[The ADEA] recognizes, as it should, that in dealing
with the complexities of discrimination, not every form
of discrimination is the same nor does it require that
every form of discrimination be defined precisely the
same, or that procedures and remedies designed to
address the discrimination be the same . . . .\22\
---------------------------------------------------------------------------
\22\Lorber Statement, supra note 11, at 129.
Because the ADEA contemplates there can be reasonable
factors other than age involved in an employment decision, Mr.
Lorber also doubted that adding mixed-motive claims to the ADEA
---------------------------------------------------------------------------
is workable:
[I]n reviewing the RFOA affirmative defense, it is
difficult to square that defense with the mixed-motive
theory holding that liability can be found when there
are two factors deemed to be motivating . . . Indeed,
it is difficult to discern how the mixed-motive theory
can co-exist with the RFOA defense.\23\
---------------------------------------------------------------------------
\23\Id.
Adding mixed-motive claims to the ADEA is ill-advised and
in conflict with Congress's intent in enacting the statute
separately, with different substantive provisions from Title
VII.
H.R. 2062 WILL IMPEDE REASONABLE ACCOMMODATIONS UNDER THE ADA
The ADA operates under a separate statutory scheme than
Title VII or the ADEA. Under the ADA, employers must provide a
reasonable accommodation to an individual with a disability
unless this would impose an undue burden on the employer.\24\
Accommodations are often reached through an interactive process
between the employer and employee. Under H.R. 2062, allowing
mixed-motive claims interferes with the interactive process in
the ADA to the detriment of individuals with disabilities by
making it more difficult to find reasonable accommodations for
these individuals. Mr. Lorber explained this outcome:
---------------------------------------------------------------------------
\24\42 U.S.C. Sec. 12112(b)(5)(A).
In the interactive process, the parties must engage
in discussion of all factors considered for reasonable
accommodation. There may be instances where the
employer does not accept the proffered accommodation
and instances where the employee or applicant does not
accept the proffered accommodation. Under a mixed
motive theory, the interactive process could by itself
be an example of a mixed-motive and lead to a finding
of employer liability. Concern about expensive and
needless litigation addressing a mixed-motive would
hinder the achievement of the key purpose of the ADA
and Rehabilitation Act, reasonable accommodation. There
is no evidence that the ADA needs the mixed motive
analysis in order to be an effective statute.\25\
---------------------------------------------------------------------------
\25\Lorber Statement, supra note 11, at 130-31.
Mr. Paretti elaborated on this point, observing that POWADA
may result in judgments against employers who have not
---------------------------------------------------------------------------
discriminated on the basis of disability:
As amended by [POWADA], the ADA could presumably
result in liability for an employer who fails to engage
in the interactive process, even where it may be
evidently obvious that no reasonable accommodation
would allow the employee to perform the essential
functions of his or her position. Is the employer's
failure to engage in such a process a ``motivating
factor'' under POWADA? Assuming arguendo that it may
be, an employer under POWADA may be able to establish a
``same action'' defense as outlined above--proving that
its failure to engage would not have changed the
ultimate result--but that employer, otherwise acting
lawfully under the ADA, would conceivably face
liability for injunctive relief, and as a dollars-and-
cents manner, attorneys' fees.\26\
---------------------------------------------------------------------------
\26\Paretti Letter, supra note 12, at 142.
H.R. 2062 disrupts the carefully crafted statutory
framework of the ADA, increasing employer liability with likely
harm and no discernible benefit for employees.
EVIDENTIARY LANGUAGE IN H.R. 2062 IS VAGUE, OVERLY BROAD, AND CREATES
LEGAL LOOPHOLES
H.R. 2062 says a plaintiff ``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 . . . .''\27\ This broad language
could allow a plaintiff to evade traditional civil litigation
requirements of proving a claim by a preponderance of the
evidence. Mr. Paretti discussed concerns regarding the bill's
evidentiary provisions, which ``appear to be novel additions to
the existing scheme of federal law protecting the civil rights
of employees.''\28\ Such unclear and overly broad language in
H.R. 2062 regarding evidentiary standards will result in
confusion and unnecessary subsequent litigation.
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\27\H.R. 2062, 117th Cong. Sec. Sec. 2(a)(1), 2(c)(2) (2021).
\28\Paretti Letter, supra note 12, at 142.
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Republican Amendments
Committee Republicans offered several amendments during the
Committee markup to highlight the fundamental policy flaws in
H.R. 2062 and to advance important priorities and practical
solutions for all workers, including older workers.
Republican Leader Virginia Foxx offered an amendment to
strike the unworkable and ill-advised provisions in H.R. 2062
allowing mixed-motive claims in retaliation cases. Allowing
mixed-motive claims in retaliation cases is contrary to the
text, structure, and history of Title VII, as the Supreme Court
held in Nassar. All retaliation claims are inherently about
differing explanations. The Supreme Court pointed out in Nassar
that in a retaliation claim, the plaintiff has already made a
discrimination complaint or can make an anticipatory
discrimination complaint, and, under the mixed-motive standard,
it will be a mere formality to plead the subsequent employment
action in question was retaliatory.\29\ As noted previously,
the Supreme Court in Nassar wrote that in retaliation cases
``lessening the causation standard could also contribute to the
filing of frivolous claims, which would siphon resources from
efforts by employers, administrative agencies, and courts to
combat workplace harassment.''\30\ The Supreme Court also
pointed out the concern about diverting resources was
especially relevant because retaliation charges filed at EEOC
had nearly doubled in the past 15 years and had become the
second-most frequently filed category of charge in 2013. This
concern is even more relevant today, because retaliation is now
the most frequently filed EEOC charge.\31\ Ignoring these
serious concerns about the real-world implications of adding
mixed-motive claims to retaliation cases, Democrats unanimously
rejected this prudent amendment.
---------------------------------------------------------------------------
\29\570 U.S. at 358.
\30\Id.
\31\See EEOC, Charge Statistics (Charges filed with EEOC) FY 1997
Through FY 2020, supra note 4.
---------------------------------------------------------------------------
A second amendment was offered by Representative Rick Allen
(R-GA) to ensure the Committee receives needed data and
evidence, which the majority failed to provide, as it considers
H.R. 2062. The amendment required that the Government
Accountability Office conduct a much-needed study on whether
the Supreme Court decisions in Gross and Nassar have
discouraged individuals from seeking or achieving legal relief
before the legislation goes into effect. The amendment is
needed because the Committee has failed to examine the
implications of H.R. 2062 adequately and has not held a hearing
solely dedicated to examining the legislation. Rather, Members
only heard testimony at a wide-ranging subcommittee-level
hearing on a number of disparate pieces of legislation.
Remarkably, a Democrat-invited witness who testified at the
hearing acknowledged ``it is difficult to quantify the impact
that the Gross decision has had on the number of older workers
who bring cases, and the number of those who win.''\32\ This
same witness testified at a Committee hearing in 2019: ``when
we might have expected a drop in charges due to Gross-inspired
discouragement from employment attorneys, there was a sizeable
jump in the number of ADEA charges filed with EEOC.''\33\ In
fact, age discrimination and retaliation charges as a
percentage of all charges filed with EEOC have not declined
since Gross and Nassar were handed down,\34\ and plaintiffs
continue to win age discrimination and retaliation cases in the
courts. Committee Democrats unanimously rejected this amendment
to gather much-needed data before considering major changes to
the nation's civil rights laws and proceeded to adopt H.R. 2062
despite a lack of evidence indicating a need for the bill.
---------------------------------------------------------------------------
\32\McCann Statement, supra note 3, at 7.
\33\Eliminating Barriers to Employment: Opening Doors to
Opportunity: Hearing Before the H. Comm. on Educ. & Lab., 116th Cong.
16 (2019) (statement of Laurie McCann, Senior Attorney, AARP Found.).
\34\See EEOC, Charge Statistics (Charges filed with EEOC) FY 1997
Through FY 2020, supra note 4.
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To add some much-needed truth in advertising to the bill,
Representative Bob Good (R-VA) offered an amendment to add a
finding pointing out that under H.R. 2062, nearly all
successful plaintiffs will not be entitled to monetary damages,
other payments, or reinstatement, while their attorneys will be
awarded fees and costs, on which the plaintiffs may owe income
tax. As discussed previously, the Supreme Court in Gross
eliminated the defense that allows the employer to demonstrate
it would have taken the same employment action in the absence
of the impermissible factor, such as age, while H.R. 2062
restores this defense. Nearly all employers will be able to
make this demonstration, and plaintiffs in these cases will not
be entitled to any monetary damages, other payments, or
reinstatement. Only the trial lawyers in these cases will be
paid, while the plaintiff may be stuck owing income tax on the
attorneys' fees awarded. Committee Democrats nonetheless
unanimously rejected this commonsense amendment, which would
have informed workers they are very unlikely to be awarded any
damages, other payments, or reinstatement under H.R. 2062.
To protect workers with a disability, Representative Lisa
McClain (R-MI) offered an amendment to clarify that a plaintiff
may not rely solely on the fact that an employer has engaged in
an interactive process with the employee or job applicant to
try to determine a reasonable accommodation. Under the ADA,
when a worker with a disability has requested an accommodation,
the employer must make a reasonable effort to determine the
appropriate, reasonable accommodation.\35\ ADA regulations
state that accommodations are best determined through a
flexible, interactive dialogue between the employer and the
worker.\36\ Under H.R. 2062, if the employer and worker do not
agree on an accommodation following the interactive process,
this alone could be sufficient evidence to demonstrate mixed-
motive ADA discrimination. H.R. 2062 could thus have a very
chilling effect on the interactive process and discourage
employers from fully engaging in a dialogue with workers due to
the threat of future litigation, interfering with workers'
ability to receive an accommodation. The amendment simply
clarifies that engaging in the interactive process, by itself,
is not sufficient to demonstrate an unlawful practice under the
bill, consistent with current law. Despite what should have
been a non-controversial clarification to protect workers with
a disability, Committee Democrats unanimously rejected this
amendment.
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\35\See, e.g., 42 U.S.C. 12112(b)(5)(A).
\36\See 29 C.F.R. pt. 1630., app. (``Process of Determining the
Appropriate Reasonable Accommodation'').
---------------------------------------------------------------------------
Lastly, Representative Elise Stefanik (R-NY) offered an
amendment to clarify that a plaintiff must prove his or her
case by a preponderance of the evidence under H.R. 2062. The
bill changes current law and allows mixed-motive claims in ADEA
and ADA cases. The legislation states that in these cases, the
plaintiff 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.''\37\ This is exceedingly sweeping language that may
not require the plaintiff to prove a claim by a preponderance
of the evidence, which is the common standard in civil cases.
Indeed, the Supreme Court held in 2003 that a preponderance of
the evidence is required to prove Title VII mixed-motive
cases.\38\ This amendment clarifies that a preponderance of the
evidence is required to prove mixed-motive ADEA and ADA claims
under H.R. 2062. Although this is a clarifying amendment that
should have been completely unobjectionable, Committee
Democrats unanimously voted against the amendment, refusing to
resolve this ambiguity in the bill.
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\37\H.R. 2062, 117th Cong. Sec. Sec. 2(a)(1), 2(c)(2) (2021).
\38\Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003).
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Conclusion
H.R. 2062 is an unnecessary, far-reaching, and misleading
bill that does not ``protect older workers.'' Committee
Democrats failed to allow a proper examination of H.R. 2062,
depriving Members of the opportunity to review the legislation
appropriately before it was considered by the Committee.
Supporters of the bill also failed to demonstrate that the
legislation is needed or that it will actually help workers.
H.R. 2062 was instead written for the benefit of trial lawyers,
encouraging them to cash-in on frivolous lawsuits, notably
preventing most workers from receiving any monetary damages,
other payments, or reinstatement. For these reasons, and the
reasons described above, we oppose the enactment of H.R. 2062
as reported by the Committee on Education and Labor.
Virginia Foxx,
Ranking Member.
Joe Wilson.
Glenn ``GT'' Thompson.
Tim Walberg.
Rick W. Allen.
Jim Banks.
James Comer.
Russ Fulcher.
Fred Keller.
Gregory F. Murphy, M.D.
Mariannette Miller Meeks, M.D.
Burgess Owens.
Bob Good.
Lisa C. McClain.
Diana Harshbarger.
Mary E. Miller.
Victoria Spartz.
Scott Fitzgerald.
Madison Cawthorn.
Julia Letlow.
[all]