Employers may face greater legal risks as a result of federal politicians’ renewed efforts to strengthen workplace anti-discrimination laws for older workers. However, firms can still fight back against lawsuits by providing the necessary paperwork, one attorney said.
The POWADA Act, which stands for Protecting Older Workers Against Discrimination Act, was introduced by both Republicans and Democrats in the US House of Representatives on December 4. The main component of the bill would specify that a party may prove that an unlawful employment practice took place by demonstrating that the employer’s age or any other protected trait or behavior influenced the unlawful practice. This would change federal law.
The “mixed-motive” test is what Rep. Bobby Scott, a Democrat from Virginia, dubbed this item in a legislative description. Since its initial 2009 proposal, POWADA has been submitted to Congress several times without success. The bill was passed by the House in 2021 but was not approved by the Senate.
The U.S Supreme Court Ruling Altered the Age-Bias Landscape
POWADA supporters cite a U.S. Supreme Court decision from 2009 as a turning point in the history of the legislation on age discrimination.
The party asserting a disparate treatment claim under the Age Discrimination in Employment Act must demonstrate, by the preponderance of the evidence, that age was the “but-for” cause of an adverse employment action, the court decided in Gross v. FBL Financial Services, Inc., a 5-4 ruling.
Furthermore, the court ruled that if plaintiffs could provide proof that age was a driving force, employers would not have to demonstrate that they would have acted in this way regardless of the plaintiffs’ age.
Scott stated in a press release, “More than ten years ago, the Supreme Court undermined protections for older workers by setting an unreasonable burden of proof for age discrimination claims.” By guaranteeing that the burdens of proof in age discrimination lawsuits are handled in the same way as other discrimination claims, POWADA, he continued, “would finally restore the legal rights of older workers.”
Interest organizations, such as AARP, have backed the most recent version of the measure. In a letter dated December 6, the organization referenced the findings of a 2022 poll indicating that 64% of employees 40 years of age and above had witnessed or experienced age discrimination at work.
Implications for Employers
Statistics-wise, age prejudice has long had an impact on the HR industry. According to a 2021 analysis published by the charity Generation, hiring managers frequently consider employees over 45 to be weaker candidates for jobs. In the same vein, according to a 2022 Resume Builder survey, 4 out of 10 hiring managers acknowledged age bias.
Given these circumstances and POWADA’s bipartisan support, Michael Fallings, managing partner at Tully Rinckey, believes the bill has a strong chance of passing into law. Employers would still be able to refute allegations of age discrimination, though, if that happened.
According to Fallings, “It’s not necessarily opening the doors for employees to get remedies for age discrimination.” “In a sense, it’s a leveling of the playing field,”
He went on to say that some of the strategies employers may use include recordkeeping and the construction of a timeline of events to support particular employment actions, including discipline or termination. Documentation of incidents such as verbal counseling, problems with performance, or other types of policy infractions can fall under this category.
According to Fallings, employers must demonstrate that they gave notice to the employee in a variety of ways over an adequate amount of time for decisions based on performance. If necessary, they also need to present a performance improvement plan.