S. 2189: Protecting Older Workers Against Discrimination Act

On March 13, 2012, Sen. Thomas “Tom” Harkin [D-IA] introduced Senate bill 2189: Protecting Older Workers Against Discrimination Act. Senator Harkin is the chairman of the Senate Committee on Health, Education, Labor, and Pensions, where the bill has been referred. This bill would modify the Age Discrimination in Employment Act of 1967 (ADEA) by making provision for "mixed motive claims."

ADEA prohibits discrimination in employment against persons who are of the age of 40 or over. The Act prohibits employment decisions (i.e., hiring, classifying, limiting, etc.) based solely on age, except in cases of a bona fide occupational qualification for reasons that are "reasonably necessary" for the job. For example, an employer looking for a model for a teenage clothing line is not in violation of ADEA because (s)he will not hire a 50 year old to play the part.

What happens, however, if age was not the sole factor? What if age was only a minor or even half contributing factor?

Unlike Title VII of the Civil Rights Act (1964), there is no specific language in ADEA that allows for a "mixed motive claim." Because specific language is present in Title VII, an employer is in violation of the statute if the protected status (race, color, national origin, religion, and gender) plays any role in employment policies or actions. As amended by the Pregnancy Discrimination Act of 1978, it would be unlawful, for example, if an employer decided that Sarah was ineligible for a promotion because "her work isn't all that great and she's pregnant and will be going on maternity leave soon, anyway."

The Age Discrimination in Employment Act of 1967 (ADEA) does not contain such language. Additionally, and, notably, ADEA was not addressed in the Civil Rights Act of 1991 (limited to Title VII, the Americans with Disabilities Act, and Section 501 of the Rehabilitation Act of 1973). Supreme Court cases (Kolstad v. American Dental Association, 1991) following the Civil Rights Act ruled that an employee need not prove a discriminatory act under the statute was "egregious or outrageous."

Since neither the Civil Rights Act nor subsequent Supreme Court rulings addressed age discrimination, this omission became the focus of the Supreme Court Decision in Gross v. FBL Financial Services, Inc. (2009). The Court ruled that since Congress did not include ADEA in its Civil Right Act of 1991 its clear intent was to disallow mixed motive claims under ADEA. The courts, according to Gross, could not assume the intent of one statute--in this case, Title VII--to be the intent of other, even similar, statutes.

The intent of the Senator Harkin's "Protect Older Workers Against Discrimination Act" is to close this exception and to add language that would make mixed motive prohibited under ADEA. In other words, "John is absent too much to be considered for CFO and, really, he's 55 and we want someone younger, with fresher ideas, and who will stay around longer" would now be in significant danger of being in violation of ADEA.

In my opinion, this was probably the intent of ADEA to begin with, although it is curious that the language that was present in other discrimination legislation was noticeably absent in the age discrimination statutes. With or without this bill being passed, it is likely best to leave age out of the equation in employment practices to avoid litigation and possible penalties.

Click here for full text of ADEA

Ted Taylor, SPHR, CSP