Anti-age discrimination bill advances

On June 11, bipartisan bill H.R. 1230, the Protecting Older Workers Against Discrimination Act, or POWADA, advanced out of the House Education and Labor Committee for consideration by the full House of Representatives.

POWADA would amend the Age Discrimination in Employment Act to reverse and correct the 2009 U.S. Supreme Court decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, and put age discrimination back on equal footing with other types of discrimination in the workplace. A parallel Senate bill, S.B. 485, remains in committee.

In the Gross decision, the conservative wing of the Supreme Court at the time (joined by Justice Anthony Kennedy), held that "mixed-motive" jury instructions are never proper in ADEA cases. A harsh decision to older workers, the court seized upon an argument interpreting the distinct language used in the ADEA versus Title VII to find that, in order to prevail on an ADEA disparate treatment claim, a plaintiff needed to show age was the "but-for" reason for the adverse employment action (not just a motivating reason). For Gross, a jury finding that his age was one of several motivating factors in his demotion was held not to be sufficient to establish liability where it was not the "but-for" reason. The outcome struck many observers as profoundly unfair.

Compared to other types of discrimination under Title VII such as race, sex, and religion, where liability can be established just by showing the protected characteristic was a "motivating factor," Gross made federal age discrimination claims distinctively harder to win.

After Gross, courts in California and some other states (e.g. Alaska, Connecticut and Texas) stepped in to make clear that the Gross standard did not apply to their states' anti-discrimination laws. As a result, where mixed-motive liability still applies with a California Fair Employment and Housing Act age discrimination claim, the effect of Gross in California litigation was minimized. Strictly in terms of litigation, Gross does not often come into play because the FEHA is the preferred choice of statute for California plaintiffs pursuing age discrimination claims.

So why should Californians care about POWADA?

POWADA's passage would accomplish more than just making it easier to prevail against an employer for age discrimination. Realistically, only a small percentage of discrimination of any kind is addressed through lawsuits, and an even smaller percentage of lawsuits make it to a jury. The threat of costly litigation, however, is a powerful deterrent to discrimination and incentive to be proactive in self-policing.

Out of Gross, a unique combination of harmful employer motives arose. First, it has always been the case that age discrimination is distinct from other types of discrimination because, although general prejudice or bigotry is rarely financially beneficial, there often exists a very real financial motive intertwined with age discrimination. Whether involving replacement by a younger worker, automation, or outsourcing, older workers are more prone to finding themselves priced out of their careers.

Moreover, an older worker suffering an adverse employment action may be less able to recover in their careers or mitigate their losses than a younger worker suffering a similar event. For these reasons, there is a colorable argument that older workers are more vulnerable to discrimination and therefore should be afforded the greatest protection possible. However, where Gross took away mixed-motive instructions, it also created an incentive for employers to obfuscate discriminatory actions with pretextual reasoning, while disincentivizing truth, fairness and transparency. Although, in theory, this toxic combination of employer motives should not exist in California, often decisions affecting California employees are made out of state or by people who do not understand the nuances of California law.

Where people today work later into their lives and have more difficulty retiring, ageism is more likely to affect more people at some point in their careers. In California, specifically, where the cost of living is high by national standards, people may choose (or be forced) to relocate to a different state in their later years either to finish their careers or semi-retire with less overhead. Having the same age protections in other states is important for these older workers crossing state lines.

More broadly, POWADA signals a national step in the right direction. With ominous projections of Social Security insolvency and the practical death of defined benefit pension plans in the private sector, there has been much talk for years about the troubling future of an aging workforce without much action. If people are forced to work later into their lives, at least curtailing some of the motivation to impede them is a decent step that we all should care about. 