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  • March 14, 2012



150 150 Gregory A. Hall

On March 13, 2012, the Senate introduced a bill entitled the “Protecting Older Workers Against Discrimination Act” (POWADA). The legislation, co-sponsored by Iowa Senators, Tom Harkin (D) and Charles Grassley (R), as well as Senator Patrick Leahy (D-VT), seeks to restore significant protections of the Age Discrimination in Employment Act (ADEA) that the U.S. Supreme Court vitiated in its 2009 decision, Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009). The Gross decision made it much more difficult for ADEA plaintiffs to prove age discrimination by requiring a substantially higher evidentiary burden than for plaintiffs who file claims under Title VII on the basis of race, sex, religion or ethnic origin.

Before the Gross decision, it was well established that an ADEA plaintiff could show discrimination by proving that age was simply one factor motivating the employer’s adverse employment action. Once the plaintiff met this burden of proof, then the burden shifted to the employer to show that it would have taken the same action regardless of the employee’s age. In Gross, however, the Court held that the “motivating factor” standard of proof does not apply to the ADEA. Thus, after Gross, the only way for ADEA plaintiffs to establish discrimination is to prove that “but for” the discriminatory motive the employer would not have taken the adverse action, which is a much higher burden of proof. Moreover, many lower courts have interpreted Gross to require proof that age was the only factor that caused the employer to discriminate.

In addition to its impact on age discrimination, the Gross decision has created uncertainty in other employment and civil rights laws in that the reasoning of the Gross decision can be applied not only to the ADEA, but to any law that requires proof of motivation, unless it explicitly provides a different standard of causation. For example, courts have held that the Gross causation standard applies to the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, the Jury Systems Improvement Act (JSIA), the First Amendment, and even to retaliation claims under Title VII of the Civil Rights Act of 1964.

If you support workers’ rights, then contact your Congresspersons and tell them to support this important legislation. If you think your ADEA rights have been violated, contacted Denver Employment Attorney Gregory A. Hall.

Law Office of Gregory A. Hall
3570 E. 12th Avenue, Suite 200
Denver, CO 80206
Ph. 303-320-0584

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