Senate bill S.2189, otherwise known as the Protecting Older Workers Against Discrimination Act, is being reintroduced in the Senate in repudiation of the Supreme Court’s 2009 decision in the Gross v. FBL Financial Services case, which placed a further burden of proof upon the shoulders of employees filing age discrimination lawsuits. The official ruling in the case held that employees claiming to be victims of age discrimination and having suffered some detrimental employment-related action must prove that their age (40+ years) was the sole determining factor for the perceived discriminatory act.
Previous court decisions held that if a worker could show age to be a contributing factor in a demotion or firing, their employer carried the burden of proof in showing its reasoning behind its actions.
Bipartisan anger at the decision led to the introduction of a bill to counteract the effects of the Supreme Court’s ruling. While previous versions of the bill failed to advance through the Senate in 2009 and 2010, recently S.2189, or POWADA for short, was resurrected by Senators Patrick Leahy (D – VT), Chuck Grassley (R – IA), and Tom Harkin (D – IA). The thrust of the argument for the bill is that other anti-discrimination laws require claimants to only prove that a particular bias is a contributing factor to the discrimination, not the sole. The sponsoring Senators argue that the burden of proof for age-bias should be the same to that of other anti-bias statutes.