Congress is considering a bill that would make it easier for plaintiffs to prevail on age discrimination lawsuits under the Age Discrimination in Employment Act (ADEA).
Currently, litigants claiming age discrimination must prove that, “but for” their age, they would not have been or subjected to an adverse employment action (i.e. termination or demotion). This “but for” rule, derived from the text of the ADEA, was established by the U.S. Supreme Court in the 2009 case of Gross v. FBL Financial Services.
Senate bill S2189 would reverse the Supreme Court’s opinion in Gross and make an employment decision unlawful if age was a “motivating factor” in the decision. This would make age discrimination claims under the ADEA similar to unlawful discrimination claims under Title VII of the Civil Rights Act of 1964. Under this more permissive test, an employer would be liable for discrimination if it subjects an employee to an adverse employment action based both on the employee’s age, as well as legitimate business reasons (so-called “mixed motives” cases).
S2189 would make it much easier for plaintiffs to prevail in age discrimination lawsuits. Instead of having to prove that they would not have been fired/demoted “but for” their age, employees will only have to prove that age was a “motivating factor” in the decision.
It is unclear what the fate of the current bill will be; however, similar bills proposed in 2009 did not garner enough support to reach a vote. Whatever the result of the bill, it is a reminder to employers that employment decisions may be afforded intense scrutiny if an employee/former employee files a lawsuit. Therefore, it is important to document and convey the legitimate reasons motivating any employment decision to protect yourself against future claims.