Protecting Older Workers Against Discrimination Act

Floor Speech

Mr. LEAHY. Mr. President, I am pleased to join Senators HARKIN and GRASSLEY in reintroducing the Protecting Older Workers Against Discrimination Act. This bipartisan bill seeks to restore crucial worker protections that were cast aside by five justices of the Supreme Court in the 2009 case Gross v. FBL Financial, Inc. The bill 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, extending protections against workplace discrimination to older workers. We strengthened and codified these protections in the Civil Rights Act of 1991, which passed the Senate with an overwhelming, bipartisan vote of 93-5. These statutes established not only our clear congressional intent, but also a clear legal standard: 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 Supreme Court's Gross decision unilaterally erased that longstanding standard. A narrow 5-4 majority threw out a jury verdict in favor of Jack Gross, a 32-year employee of a major financial company, who had sued his employer under the ADEA. That jury concluded that age was a motivating factor in the company's decision to demote Mr. Gross and to reassign a younger, significantly less-qualified worker to take his place. But the Supreme Court ignored the fact finder, its own precedent, and congressional intent to overturn the jury verdict.

Five justices shifted the burden from the discriminators to the discriminated, deciding that workers like Mr. Gross must now prove that age was the only motivating factor in a demotion or termination. The court's decision 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 as long as they could cloak it with another reason. The Protecting Older Workers Against Discrimination Act rejects the Supreme Court's reasoning in the Gross decision, not only in those cases under the ADEA but also under similar civil rights provisions.

The Supreme Court's holding has created uncertainty in our civil rights laws, making it 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. The bill reestablishes Congress' intent that age discrimination is unlawful even if it is only part of the reason to demote or terminate a worker. It makes it clear that employers cannot get away with age discrimination by simply coming up with a reason to terminate an employee that sounds less controversial. 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.

I commend Senator Harkin for his efforts over the past 4 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 once again urge my fellow Senators to join this bipartisan effort and show their commitment to ending age discrimination in the workplace.

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