The day after the House Subcommittee on Health, Employment, Labor and Pensions conducted a hearing on the Protecting Older Workers Against Discrimination Act (POWADA) (H.R. 3721, S. 1756), the Senate Health, Education, Labor and Pensions (HELP) Committee held its own hearing on the issue, highlighting the significant attention the bill is receiving on Capitol Hill.  The POWADA would, among other things, reverse last year’s U.S. Supreme Court decision in Gross v. FBL Financial Services, Inc. in which the Court toughened an employee’s burden of proof in bringing a mixed-motive discrimination claim under the Age Discrimination in Employment Act (ADEA). Specifically, in Gross, the Court held that a plaintiff bringing an ADEA claim must show by a preponderance of the evidence that age was the “but for” cause of the employer’s adverse employment decision. In contrast to Title VII discrimination cases, in ADEA cases an employer does not need to prove that it would have made the same decision regardless of age, even if the employee were to produce some evidence that age may have been a contributing factor in the decision.

Three of the five witnesses at the HELP Committee hearing – Jack Gross, plaintiff in the Supreme Court case at issue; Eric Dreiband, former General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC) currently in private practice; and Gail E. Aldrich, member of the AARP Board of Directors – also testified at yesterday’s House subcommittee hearing. A full list of the Senate committee’s witnesses, their testimony, and a video of the hearing can be found here.

Photo credit:  Skynesher