Congress Works on Age Discrimination Legislation

Both the House and Senate have been working on the Protecting Older Workers Against Discrimination Act (POWADA). This legislation is designed to overturn the Gross v. FBL Financials Services, Inc. case that was decided by the Supreme Court last year.

The Gross decision held age discrimination plaintiffs to a higher standard of proof than other victims of discrimination by requiring them to prove their age was the “but for” cause of the employer’s adverse decision instead of “a motivating factor.”

The legislation (H.R. 3721, S. 1756) establishes that:

• standards of proof for all federal laws forbidding discrimination and retaliation (including whistleblowing) are the same
• the plaintiff can choose the method of proof for the case
• employees can rely on any type or form of admissible circumstantial or direct evidence to prove their discrimination and retaliation cases