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Bipartisan Legislation Will Protect Older Workers from Discrimination

WASHINGTON, D.C. – Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) have last weekjoined with Senator Patrick Leahy (D-VT) to introduce legislation that revives vital civil rights protections for older workers that were limited following the Supreme Court’s decision in Gross v. FBL Financial. Harkin is Chairman of the Health, Education, Labor and Pensions (HELP) Committee while Senators Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

In Gross, the Supreme Court overturned established precedent that had applied standards of proof the Supreme Court first set out in interpreting the Civil Rights Act of 1964 to the Age Discrimination and Employment Act (ADEA). The Court held that because Congress did not amend the ADEA to include this standard when it codified the standard for race, sex, national origin, and religion claims as part of the Civil Rights Act of 1991, the standard did not apply to age claims. As a result of this discrepancy, the opinion has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

“Jack Gross’s story is unique, but sadly, is not uncommon,” said Senator Harkin. “Prior to the Court’s decision in Gross, the same standard of proof applied equally to all workers, regardless of the type of invidious discrimination they faced. Ignoring these consistent standards, the Court’s decision established a far higher standard of proof for age than for discrimination based on race, sex, national origin and religion, without any rationale or justification. The Protecting Older Workers Against Discrimination Act will reverse the Court’s decision and restore the law to what it was for decades so that Jack Gross and all older workers in this country enjoy the full protections of the law.”

“The decision in the Gross case has had a major impact on employment discrimination litigation across the country. It’s time we clarify the law to ensure that other people like Jack Gross aren’t put in similar situations. Older Americans have immense value to our society and our economy and they deserve the protections Congress originally intended,” Grassley said.

“This bipartisan legislation reaffirms the contributions made by older Americans in the workforce and ensures that employees will be evaluated based on their performance and not by arbitrary criteria such as age,” said Senator Leahy. “In these difficult economic times, hardworking Americans deserve our help. We must not allow a thin majority of the Supreme Court to eliminate the protections that Congress has enacted for them.”

“The Supreme Court’s decision in my case significantly undermined well-established protections against discrimination for older workers,” said Jack Gross, the Des Moines man whose case prompted the legislation. “I am also concerned that this decision, with my name on it, is being used as precedent to undermine workers’ rights under other civil rights laws, too.”

“I am grateful and proud to have two tenured and highly-respected senators from my home state of Iowa leading the charge on this bipartisan bill to restore longstanding legal standards. Congress has a long history of working together, on a bipartisan basis, to create a level playing field in the workplace, and I hope they will enact this legislation as soon as possible.”

The Protecting Older Workers Against Discrimination Act will restore fundamental fairness.

• The Act reverses the Gross decision and restores the law to what it was for decades before the Court rewrote the rule. The Act makes clear that when a victim shows discrimination was a “motivating factor” behind a decision, the burden is properly on the employer to show it complied with the law.

• The Act is modeled on the Civil Rights Act of 1991, which passed the Senate on a bipartisan basis 93-5. Among other things, the Civil Rights Act of 1991 codified the “motivating factor” framework for race, sex, national origin and religion discrimination claims under Title VII of the Civil Rights Act of 1964.

• The Act makes clear that this “motivating factor” framework applies to all anti-discrimination and anti-retaliation laws involving race, sex, national origin, religion, age and disability – treating all workers, and all forms of discrimination, equally.

The bill is supported by the AARP, the American Association of People with Disabilities (AAPD), the Leadership Conference for Civil and Human Rights, National Employment Lawyers Association, National Partnership for Women and Families, and National Senior Citizens Law Center.

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