Statements on Introduced Bills and Joint Resolutions

Floor Speech

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Mr. LEAHY. Mr. President, today, I am pleased to join Senators Harkin and Grassley in introducing the Protecting Older Workers Against Discrimination Act. This bipartisan bill seeks to restore crucial worker protections that have been cast aside by a narrow, 5 4 Supreme Court decision. The bill also 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.

Congress has long worked to enact civil rights laws to eliminate discrimination in the workplace. In 1967, Congress passed the Age Discrimination and Employment Act, ADEA, with the intent to extend protections against workplace discrimination to older workers. We strengthened these protections in the Civil Rights Act of 1991, which passed in the Senate 93 to five. These statutes established a clear legal standard and Congressional intent: an employer's decision to fire or demote an employee may not be motivated in whole or in part by the employee's age.

However, the 2009 Supreme Court decision in Gross v. FBL unilaterally erased that clear legal standard. A slim 5 4 majority threw out a jury verdict in favor Jack Gross, a 32-year employee of a major financial company, who sued under the ADEA. The jury had concluded that age was a motivating factor in the company's decision to demote Gross and reassign his duties to a younger, significantly less qualified worker. But a divisive Supreme Court ignored its own precedent and congressional intent.

Five justices decided that workers like Mr. Gross must now prove that age was the only motivating factor in a demotion or termination. The Court also required workers to essentially introduce a ``smoking gun'' in order to prove discrimination. By imposing such high standards, the Court sided with big business and made it easier for employers to discriminate on the basis of age with impunity so long as they could cloak it with another reason. As Mr. Gross stated during a Judiciary Committee hearing that I held shortly after this controversial decision was handed down, ``I feel like my case has been hijacked by the high court for the sole purpose of rewriting both the letter and the spirit of the ADEA.''

The Supreme Court's divisive holding has created much uncertainty in our civil rights laws and it is incumbent on Congress to clarify our intent and the statutory protections that all hardworking Americans deserve. The Protecting Older Workers Against Discrimination Act restores the original intent of the ADEA and three other Federal anti-discrimination statutes. It makes clear that employers cannot get away with age discrimination by simply coming up with a reason to terminate an employee that sounds less controversial. The bill re-establishes Congress' intent that age discrimination is unlawful even if it is only part of the reason to demote a worker. Under the bill, a worker would also be able to introduce any relevant admissible form of evidence to show discrimination, whether the evidence is direct or circumstantial.

To avoid future misreading of congressional intent, I encourage Federal courts to take particular note of the carefully negotiated ``Findings and Purposes'' section in this bipartisan bill. The bill unequivocally rejects the Supreme Court's reasoning in Gross not only in age discrimination cases but in all cases where courts have applied this case as binding precedent. In other words, Gross is not the proper legal standard for anti-discrimination statutes, whether or not a particular statute is directly amended by this bill.

I commend Senator Harkin for his efforts over the past three years to negotiate a bipartisan bill to restore the civil rights protections that all Americans deserve in the workplace. I also thank Senator Grassley, the Ranking Member of the Judiciary Committee, for his commitment to this issue. I urge my fellow Senators to join this bipartisan effort and show their commitment to ending age discrimination in the workplace. 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.

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