Employers are generally familiar with the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits discrimination against employees age 40 and older on the basis of age. In 2009, the U.S. Supreme Court clarified in Gross v. FBL Financial Services that plaintiffs bringing ADEA claims must prove that age was the “but for” cause of the adverse employment action, closing the door to plaintiffs who could only show that age was one factor among other factors at play in an employment decision. In other words, a plaintiff could not succeed in a “mixed motive” ADEA age discrimination claim in the way that plaintiffs bringing race or gender discrimination claims under Title VII could.

Now, Congress is making moves towards nullifying Gross. On June 23, 2021, the U.S. House of Representatives passed the Protecting Older Workers Against Discrimination Act (POWADA). If passed by the Senate and signed into law, POWADA would allow plaintiffs to bring ADEA age discrimination claims under a mixed motive theory. Plaintiffs alleging age discrimination could prevail in court by demonstrating that age was a motivating factor, even though other, non-age factors also motivated the employer’s decision. POWADA intends to lower the plaintiff’s standard of proof and may result in more-favorable outcomes for ADEA plaintiffs, which in turn may encourage the filing of more age discrimination lawsuits against employers.

Interestingly, the POWADA limits the forms of relief an ADEA plaintiff relying on a mixed motive theory could obtain from the court. If a plaintiff asserting an ADEA age discrimination claim is only able to prove that age was one motivating factor among others for an employment decision, the court would be permitted to grant declaratory relief, injunctive relief, and attorney’s fees and costs—but cannot award damages or issue an order requiring admission, reinstatement, hiring, promotion, or payment.

Fox Rothschild Labor & Employment attorneys will continue to monitor the progress of POWADA and provide updates should it continue to advance.