More than 50 years after Congress made it illegal for employers to discriminate against workers age 40 or older, data analysis by the Urban Institute and ProPublica show that more than half of older U.S. workers are pushed out of longtime jobs before they choose to retire. Distressingly, the COVID-19 pandemic has only amplified age discrimination, according to the AARP Foundation.
On June 23, the U.S. House of Representatives passed a bill — the Protecting Older Workers Against Discrimination Act (POWADA) — that would make it easier for people to win claims of age discrimination by easing the standards of proof. If also passed by the Senate and signed into law, the measure would undo a 2009 U.S. Supreme Court decision that made age-discrimination claims more difficult to prove.
POWADA was passed by the House last year as well, but it did not pass the Senate. The bill would permit plaintiffs to sue for age discrimination even if age was not the sole cause of the challenged employment decision. If POWADA mixed-motive claims were permitted under the Age Discrimination in Employment Act (ADEA), as they are under Title VII of the Civil Rights Act of 1964 for discrimination claims.
POWADA would undo a 5-4 Supreme Court decision, Gross v. FBL Financial Services, that held plaintiffs must show that age was the determinative, or “but for,” reason for an adverse employment action. Prior to the ruling, it was enough for ADEA plaintiffs to show that age was one of a number of motivating factors that influenced an adverse employment decision.