This past Tuesday, Senators Tom Harkin and Patrick Leahy introduced the “Protecting Older Workers Against Discrimination Act”, which, if enacted, will overturn a recent decision by the United States Supreme Court which increased the burden of proof on older workers bringing age discrimination claims under the Age Discrimination In Employment Act (ADEA). 

In Gross v. FBL Financial Services, Inc., the Supreme Court held that employees asserting claims under the ADEA must prove, by a preponderance of the evidence, that age was the deciding factor or the "but-for" cause of the challenged adverse employment action, and not just one of several factors that motivated the employer.  

Prior to the Supreme Court’s ruling in Gross, an employee merely had to establish that age was a factor in an adverse employment decision, like a demotion or a layoff, before the burden of proof shifted to the employer to show that it had acted for a valid reason other than age discrimination.  By virtue of the Gross decision, older workers now face a higher burden of proof than those alleging race, sex, national origin or religious discrimination.

The proposed legislation would restore the burden on the employer, as it had existed pre-Gross, to demonstrate it acted for a non-discriminatory reason once a plaintiff shows that his or her age was a “motivating factor” behind an employment decision.

 “What our bill does is restore the intent of Congress, an intent that I believe the Supreme Court negligently ignored,” Senator Leahy said.

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