Sending Office: Committee on Education and Labor
Today, the House will consider H.R. 1230, the bipartisan Protecting Older Workers Against Discrimination Act (POWADA). This bill would fix the problem created by the Supreme Court’s decision in
Gross v. FBL Financial Services, Inc. which overturned 20 years of precedent by imposing a higher burden of proof for age discrimination claims under the Age Discrimination in Employment Act (ADEA).
POWADA codifies the “motivating factor test” as the burden of proof under the ADEA. The bill also clarifies that the motivating factor test would be applied in three civil rights laws (the Rehabilitation Act, the Americans with Disabilities Act, and the
anti-retaliation provisions of Title VII of the Civil Rights Act of 1964) – all of which were subsequently impacted by the Gross decision.
In 1967, Congress enacted the ADEA to prohibit age discrimination in the workplace, and courts consistently applied the mixed motive test until 2009 when the Supreme Court overturned precedent in its 5-4 decision in
Gross. Under that decision, workers have 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.
As a result, the Gross decision instituted an unreasonably high standard of proof that is stacked against older workers in a manner which is inconsistent with the traditional burden of proof set forth in other civil rights laws–such as Title VII
of the Civil Rights Act. Since the Gross decision other courts have extended this evidentiary standard to federal disability laws and the anti-retaliation provisions in Title VII of the Civil Rights Act of 1964.
Americans are working and living longer than ever before, and workers aged 65 and older are the fastest growing age group in the labor force. However, for older job seekers and workers, age discrimination remains a barrier to both getting employed and staying
employed. According to an AARP survey released in August 2018, 3 in 5 older workers report they have seen or experienced age discrimination on the job. An Associated Press-NORC survey conducted in February 2019 found that 91 percent of older adults 45-59
and 60+ thought that older workers sometimes or often face age discrimination in the workplace.
Older workers who can prove they have been discriminated against should be treated no less favorably by the courts than other workers challenging workplace discrimination. We urge you vote for the Protecting Older Workers Against Discrimination Act (POWADA)
when it is debated today.
Organizations Supporting POWADA include: Aging Life Care Association, Alliance for Retired Americans, American Association of People with Disabilities (AAPD),American Association of Retired Persons (AARP), American Association of Service Coordinators,
American Association of University Women (AAUW) American Civil Liberties Union (ACLU), American Federation of State, County, and Municipal Employees (AFSCME), American Society on Aging, AMDA (American Medical Directors Association) – The Society for Post-Acute
and Long-Term Care Medicine, Association of Gerontology and Human Development in Historically Black Colleges and Universities, Bazelon Center for Mental Health Law, B’nai B’rith, Consumer Voice, Disability Rights Education & Defense Fund (DREDF), Easterseals,
Equal Rights Advocates, International Association for Indigenous Aging, Justice for Migrant Women, Justice in Aging, Leadership Conference on Civil and Human Rights, Leading Age, National Adult Protective Services Association, National Asian Pacific Center
on Aging (NAPCA), National Association for Hispanic Elderly , National Association of Area Agencies on Aging (n4a), National Association of Nutrition and Aging Services Programs (NANASP), National Association of Social Workers, National Center and Caucus on
Black Aging , National Committee to Preserve Social Security and Medicare, National Council on Aging, National Disability Institute, National Domestic Workers Alliance , National Education Association (NEA), National Employment Law Project, National Employment
Lawyers Association, National Hispanic Council on Aging, National Senior Corps Association, NETWORK Lobby for Catholic Social Justice, National Partnership for Women & Families, National Women’s Law Center , Paralyzed Veterans of America, Pension Rights Center,
PHI (formerly the “Paraprofessional Healthcare Institute”), Social Security Works, The Arc, The Gerontological Society of America, The Jewish Federations of North America, Women Employed, Women’s Institute for a Secure Retirement (WISER)
For more information, please contact Carolyn Ronis at
Carolyn.Ronis@mail.house.gov with the Committee on Education and Labor (Majority Staff), or Erik Kinney at
email@example.com with Congressman Sensenbrenner.
ROBERT C. “BOBBY” SCOTT
Committee on Education and Labor
F. JAMES SENSENBRENNER
Member of Congress
e-Dear Colleague version 2.0