The Supreme Court in a 2009 decision called Gross changed the well-settled burden of proof used in so-called “mixed motive” cases, by which if an employee showed that discrimination was a “motivating factor” in an adverse employment determination, the employer than had the burden to show that it would have made the same adverse employment determination even if there was no discrimination. The Court, however, ruled that the case only applies to the ADEA, and not to Title VII.

The New Gross But-For Standard

The new “but for” causation standard articulated in Gross is a more difficult test for employees to meet — an employee must now prove that “but for” his age, the employer would not have taken the adverse action. That is, an employee must show that discrimination was not just one “motivating factor” in the employer’s allegedly adverse decision affecting the employee (as it used to be, and still is, under Title VII), but that age must be the reason behind the adverse decision.

The First Attempt in 2009 To Overturn Gross

On June 16, 2010, we wrote a long piece describing how Gross changed the existing law, and noted that lawmakers introduced a bill in Congress in October 2009 to overturn Gross. A Justice Department lawyer testified in support of this bill which would undo the “damage caused by Gross” and put the ADEA back on the same footing as Title VII – that is, it would make it clear that the intent of Congress in passing Title VII and its amendments was to make the Title VII standard of proof apply to the ADEA, and the other anti-discrimination laws, such as the ADA and section 1983.  The bill went nowhere.

The Second Attempt in 2012 To Overturn Gross

Senators from both parties once again introduced the bill a little more than a year ago – Senate Bill 2189, known as the “Protecting Older Workers Against Discrimination Act,” which would have re-established the “mixed motive” analysis for ADEA claims.  The bill went nowhere.  See our April 2012 post.

The Latest Attempt To Overturn Gross

Now, for the third time, The Protecting Older Workers Against Discrimination Act has been revived.  Reintroduced in the U.S. Senate yesterday by Sens. Patrick Leahy, D–Vermont, Tom Harkin, D-Iowa, and Chuck Grassley, R-Iowa, the bill would reverse Gross.

Senator Leahy stated: “The Supreme Court’s divisive holding in Gross has created uncertainty in our civil rights laws, making it incumbent on Congress to clarify our intent and the statutory protections that all hard-working Americans deserve. …  Our bipartisan bill re-establishes Congress’ intent that age discrimination is unlawful, and it makes clear that employers cannot get away with age discrimination by simply coming up with a reason to terminate an employee that sounds less controversial.”

Once again, we will see.