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What Congress’ new attempt to strengthen age bias laws means for employers

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Federal lawmakers are once again pushing to bolster workplace anti-discrimination protections for older workers, meaning potentially increased legal liabilities for employers — but companies can still defend against claims with proper documentation, an attorney told HR Dive.

On Dec. 4, Republicans and Democrats in the U.S. House of Representatives introduced the Protecting Older Workers Against Discrimination Act, also known by the acronym POWADA. The bill’s key provision is that it would amend federal law to clarify that a party may demonstrate that an unlawful employment practice occurred by showing that age, or any other protected characteristic or protected activity, motivated the unlawful practice.

A bill summary published by Rep. Bobby Scott, D-Va., calls this provision the “mixed-motive” test. POWADA has been introduced in Congress multiple times since its original 2009 proposal without success. A 2021 version of the bill passed the House that year but did not clear the Senate.

SCOTUS ruling altered the age bias landscape

Advocates for the POWADA point to a 2009 U.S. Supreme Court case as a turning point for the laws that govern age discrimination.

In Gross v. FBL Financial Services, Inc., the court held in a 5-4 decision that a plaintiff bringing a disparate treatment claim under the Age Discrimination in Employment Act must prove, by the preponderance of the evidence, that age was the “but-for” cause of an adverse employment action.

Additionally, the court said employers need not show that they would have taken such an action regardless of age in the event that plaintiffs produce evidence that age was a motivating factor.

“More than a decade ago, the Supreme Court undermined protections for older workers by setting an unreasonable burden of proof for age discrimination claims,” Scott said in a press release. POWADA, he added, “would finally restore the legal rights of older workers by ensuring that the burdens of proof in age discrimination claims are treated in the same manner as other discrimination claims.”

The latest version of the bill has backing from interest groups including AARP, which cited in a Dec. 6 letter the results of a 2022 survey that showed 64% of workers 40 years of age and older had reported seeing or experiencing age discrimination at work.

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