Wednesday, October 7, 2009

Protecting Older Workers Against Discrimination Act

The Congressional response to Gross v. FBL is officially underway:
  • There was a Senate Judiciary Committee hearing this morning. You can follow the link and click "Webcast" to watch video of the hearing... although it seems to begin with 21 min. 15 sec. of silence so FF to 21:15. See also, Lawffice Space preview.
  • Rep. George Miller (D-CA), and others, introduced a bill yesterday proposing the Protecting Older Workers Against Discrimination Act.
  • Sen. Leahy (D-VT), and others, introduced similar (identical?) legislation in the Senate. I'm working on tracking down a copy but it's not in Thomas yet.
A few of my initial reactions to the legislation:
  • The Gross majority dropped a footnote to note "the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas... utilized in Title VII cases is appropriate in the ADEA context." This legislation would definitively explain, yes, it is appropriate in the ADEA context.
  • The new legislative framework for "mixed motive" ADEA cases would apply to "any federal law forbidding employment discrimination." This takes it out of the Court's hands (for better or worse) in all contexts for all time (assuming no Constitutional problems).
  • The legislation states that a mixed motive may be established through direct or circumstantial evidence. Supreme Court watchers will note that this was the question actually presented, argued, and briefed in Gross v. FBL. It came as a shock to many that the Court decided to just junk mixed motive ADEA cases period.
Those are just my initial thoughts. I'm sure I'll have more on this topic in the future. Something tells me this legislation will get some traction.