Legislation introduced in the Senate that would roll back Supreme Court’s Gross ruling

Under legislation introduced on Tuesday, March 13, older workers would have some of their civil rights protections that were diminished under the U.S. Supreme Court’s ruling in Gross v FBL Financial restored. The bipartisan legislation, the Protecting Older Workers Against Discrimination Act, was sponsored by Senators Tom Harkin (D-Iowa), Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt). Text of the legislation is not yet available.

In the Gross decision, the Supreme Court held that the standard of proof used in race, sex, national origin and religious discrimination cases did not apply to the Age Discrimination and Employment Act (ADEA) because Congress did not amend the ADEA to include the standard. The decision has affected lower court rulings in a variety of civil cases, including disability discrimination suits. As a result, say the Senators, Congress needed to act. Harkin noted that prior to the Court’s decision, the same standard of proof applied equally to all workers, regardless of the type of alleged discrimination.

“The Protecting Older Workers Against Discrimination Act will reverse the Court’s decision,” averred Harkin, “and restore the law to what it was for decades.”

The Protecting Older Workers Against Discrimination Act will reverse the Gross decision and restore the law to its prior state, stating that when a victim demonstrates that unlawful discrimination was a “motivating factor” behind a decision, the employer has the burden of showing that it was in compliance with the law. The legislation would clarify that the “motivating factor” standard applies to all antidiscrimination and antiretaliation laws involving race, sex, national origin, religion, age and disability.