Washington, D.C. – Today, U.S. Rep. Terri Sewell applauded the passage of H.R. 2062, the Protecting Older Workers Against Discrimination Act (POWADA). This legislation would restore legal protections for older workers and empower them to hold employers accountable for age discrimination after the Supreme Court undermined protections for older workers in its 2009 decision in Gross v. FBL Financial Services, Inc. 

“Older workers are a critical part of the workforce in Alabama’s 7th District, but because of the Supreme Court’s disastrous Gross decision in 2009, they remain particularly vulnerable to age discrimination in the workplace,” said Rep. Sewell. “ I was so proud to cast my vote for this bill. It is long past time to restore protections for older workers and ensure that they are treated with the dignity and respect they deserve.” 

A 2018 AARP survey found that 3 in 5 workers age 45 and older had seen or experienced age discrimination in the workplace. Moreover, the United States missed out on a potential $850 billion in GDP in 2018 because those age 50-plus who wished to remain in or re-enter the labor force, switch jobs, or be promoted within their existing company were not given that opportunity, according to study produced by AARP and Economist Intelligence Unit in 2020.

Despite the clear need for strong workplace protections for older workers, the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, Inc. undermined protections against age discrimination under the Age Discrimination in Employment Act (ADEA). Previous precedent only required that plaintiffs seeking to prove age discrimination in employment demonstrate that age was a motivating factor for the employer’s adverse action. However, this 5-4 Supreme Court decision now requires plaintiffs to prove “but-for” causation, or that age was the sole reason for the adverse employment action. This heightened evidentiary standard upended decades of precedent that had allowed individuals to prove discrimination by showing that a discriminatory motive was one of the factors on which an employer’s adverse action was based. Since the 2009 Gross decision, courts have applied the “but-for” standard to other civil rights laws.

The Protecting Older Workers Against Discrimination Act would:

• Restore longstanding protections under the ADEA which covers workers aged 40 and over. It would do so by replacing the Gross “but-for” test with the “mixed motive” test that Courts applied prior to 2009. This would align the burden of proof for age discrimination with the same standards currently in law for proving discrimination based on based on race and national origin.
• Amend three other civil laws in addition to the ADEA – the anti-retaliation provisions in Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973 – to ensure that charges of discrimination under these three laws will also be adjudicated under the “mixed motive” standard. This would ensure victims are not required to refute every purported nondiscriminatory motive offered by the employer for their discriminatory action.