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Bill would change burden of proof in ADEA, ADA cases

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in Discrimination and Harassment,Human Resources

Bipartisan legislation working its way through the U.S. Senate would make it easier for employees to prove age and disability discrimination.

The Protecting Older Workers Against Discrimination Act (POWADA) seeks to overturn the U.S. Supreme Court’s 2009 decision in Gross v. F.B.I. Financial Services, in which the court ruled that em­­ployees must show by a preponderance of the evidence that but for their age, the adverse employment action would not have occurred.

That “but for” standard forced older em­­ployees to bear the burden of proving that they had suffered from age discrimination.

POWADA would allow “mixed motive” discrimination cases to move forward under the Age Dis­­crimi­­na­­tion in Employment Act (ADEA) and the ADA. Under the “mixed motive” burden, employees need only show that age or disability was one of the motivating factors in the employer’s decision. Employees may bring “mixed motive” lawsuits under Title VII of the Civil Rights Act.

The bill is sponsored by Iowa Sens. Tom Harkin (D) and Chuck Grassley (R), along with Vermont Democrat Patrick Leahy. POWADA (S. 2189) probably has a chance to pass the Senate, but the Republican-controlled House of Representatives is unlikely to adopt it.

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