Will Apathy Kill POWADA Again This Year?

U.S. SenateHere we go again. U.S. Sens. Bob Casey (D-PA) and Mark Kirk (R-IL) have introduced the Protecting Older Workers Against Discrimination Act (POWADA) for consideration in the Senate to reverse a 2009 Supreme Court decision that made it much harder for workers to prove they are victims of age discrimination.

The original POWADA was introduced in 2009 but – for reasons that defy explanation – Congress has failed to act on the measure. There does not appear to be any objection the POWADA, which would merely restore the status quo that existed for two decades prior to the 2009 ruling. The POWADA is simply ignored year after year, even as older workers suffer epidemic levels of age discrimination in employment.

Older workers have been second-class citizens in the U.S. legal system since 2009.

The unfair and unjust treatment of age discrimination victims prompted my 2014 book, Betrayed: The Legalization of Age Discrimination in the Workplace, which advocates for the immediate adoption of the POWADA. In the long run, I propose making age a protected class under Title VII of the Civil Rights Act of 1964, the federal law that prohibits discrimination on the basis of race, sex, religion, color and national origin.

What about this year? Does the POWADA stand any chance of being passed by both houses of Congress and  signed into law by the President Obama?

Nancy Zirkin, executive vice president for policy at The Leadership Conference on Civil and Human Rights, has called upon Congress to take swift action to “restore fairness in the workplace” by passing the POWADA. She notes that many older Americans are still working to regain the economic security they lost in the 2008 recession.

However, the Obama administration is currently engaged in an unprecedented attack on the Age Discrimination in Employment Act of 1967 (ADEA). President Obama signed an executive order in 2010 that allows federal agencies to discriminate against older workers and U.S. Labor Secretary Thomas E. Perez  recently endorsed a private sector initiative by some of America’s largest corporations that appears to blatantly violate the ADEA.

There is no justification for treating one group of discrimination victims less well than others. Older workers are severely harmed by age discrimination, which propels many to an old age of poverty or near poverty..

Age discrimination victims deserve equal justice.

The U.S. Supreme Court, in Gross v. FBL Financial Services, raised the level of proof in cases brought under the Age Discrimination in Employment Act of 1967 (ADEA) far above that of Title VII. In the 5-4 decision, Supreme Court Justice Clarence Thomas wrote that Congress revised Title VII in 1991 to permit so-called “mixed motive” discrimination lawsuits but had never acted with respect to the ADEA.

As a result, plaintiffs must show that age discrimination was the determinative factor in their demotion or dismissal.  In other words, they have to show that “but for” age discrimination, they would not have suffered the adverse employment action. Some federal courts even have interpreted the Gross decision to require workers to prove that age discrimination was the sole cause for an adverse employment action.

Until Gross, age discrimination plaintiffs were required to meet the same level of causation that still exists in Title VII cases; they had to show that discrimination was one of possibly many motivating factors in the employer’s decision-making. Then the burden shifted to the employer to show that it would have made the decision regardless of age discrimination.

The POWADA would amend the ADEA to specify that age only needs to be one motivating factor in adverse employment actions and not the determinative or sole factor.

The Gross decision made proving age discrimination exceedingly difficult – if not impossible – because it effectively requires the plaintiff to disprove a universe of reasons thrown up by the employer to justify age discrimination. Many attorneys stopped taking age discrimination cases to federal court after Gross.

In a statement to ThinkProgress, Casey said: “Workers should be evaluated on their performance in the workplace — not their age … The Supreme Court’s troubling decision in Gross v. FBL Financial is another blow to civil rights from this Court. This legislation is a commonsense way to provide a measure of accountability to employers who would discriminate against someone because of their age.”

The Gross decision created chaos in age discrimination cases and uncertainty in other types of employment and civil rights cases. Various courts have ruled the Gross “but for” standard also applies to the Americans with Disabilities Act, the Rehabilitation Act of 1973, the Jury Systems Improvement Act, the First Amendment, and to retaliation claims under Title VII of the Civil Rights Act of 1964.

The proposed POWADA was originally  introduced in the U.S. Senate in 2009 by Sens. Chuck Grassley (R-IA) and Tom Harkin (D-IA), who represented the state of residence of  Jack Gross, who was the plaintiff in the Gross case. Sen. Harkin retired in 2014 but Sen. Grassley is running for a seventh term.

A spokesperson for Grassley said he is still a co-sponsor of the bill but noted that Senator Kirk and Senator Casey are both on the Senate’s Health, Education, Labor and Pensions Committee “which is a big help in moving a bill forward.  Senator Grassley was pleased to let them take the lead because of their interest in the bill and their membership on the committee of jurisdiction.”

In the past, Congress has acted on numerous occasions to  adopt a “legislative fix”  in response to  a U.S. Supreme Court decision that eliminated or failed to ensure equal rights for Americans.

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