Congress Tees Up to Slap down the Supreme Court's Gross Decision

On October 6, 2009, Senators Harkins (D. Iowa), Leahy (D. Vt.), and Miller (D. Calif.) introduced proposed legislation entitled “Protecting Older Workers against Discrimination Act” for the “simple purpose of reversing the Court’s decision and restoring the law to what it was for decades.” The proposed law directly responds to the U.S. Supreme Court’s June 18, 2009, decision in Gross v. FBL Financial Servs., Inc. wherein the Court held that plaintiffs alleging age discrimination under the Age Discrimination and Employment Act cannot prevail under the “mixed motives” burden of proof standard. As such, plaintiffs seeking recourse under the ADEA must prove by a preponderance of the evidence that “but for” their age, the employer would not have taken the adverse employment action; plaintiffs cannot simply show that age was one of the motivating factors in an employer’s decision.

Senator Leahy and his co-sponsors believe that the proposed legislation will “restore vital civil rights protections” for older workers by reversing the Gross decision to make clear that establishing discrimination as a “motivating factor” behind employment decisions is sufficient proof to prevail on ADEA claims and puts the burden “properly on the employer to show that it complied with the law.” As further justification, Senator Leahy represented that older workers “make up nearly 50% of the American work force” and “are particularly vulnerable to suffering discrimination during difficult economic times.” Senator Leahy’s statement points to statistics showing that age discrimination complaints filed with the EEOC have “jumped nearly 30% between 2007 and 2008.”
 
Readers will recall that when the Gross decision was released in June, it was immediately predicted that Congress would react strongly and swiftly just as it did in response to the Ledbetter v. Goodyear decision of a few years earlier which led to the enactment of the Lily Ledbetter Fair Pay Act.