Age Discrimination on a Monday Morning - Part 2
A Congressional bill to overturn the Supreme Court's decision in Gross v. FBL is now available in the form of a proposed "Protecting Older Workers Against Discrimination Act." (POWADA? We might need a better acronym here.) Gross, you will recall, did away with the ability of older plaintiff's to attempt to prove age discrimination on a mixed motives theory. Instead, since Gross they have been limited to attempting to prove that age discrimination is the "but for" cause of an adverse employment action against them, a much heavier burden that in many cases makes proving age discrimination impossible.
The bill, text here, has a retroactivity provision that would return things to the way they were before the Gross decision. The bill would also make the disparate impact theory available in cases that were pending as of the date of the Gross decision, and that were filed after.
The odds are strong that the bill will be passed. Age plaintiffs with pending cases may want to seek stays of proceedings until the legislative process completes, one way or the other. Employers, on the other hand, may want to seek to expedite litigation, or consider settlement of marginal claims, before the law changes unfavorably for them.