IIB
116th CONGRESS
2d Session
H. R. 1230
IN THE SENATE OF THE UNITED STATES
January 16, 2020
Received; read twice and referred to the Committee on Health, Education, Labor, and Pensions
AN ACT
To amend the Age Discrimination in Employment Act of 1967 and other laws to clarify appropriate standards for Federal employment discrimination and retaliation claims, and for other purposes.
Short title
This Act may be cited as the Protecting Older Workers Against Discrimination Act
.
Standards of proof
Age discrimination in employment Act of 1967
Clarifying prohibition against impermissible consideration of age in employment practices
Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is amended by inserting after subsection (f) the following:
Except as otherwise provided in this Act, an unlawful practice is established under this Act when the complaining party demonstrates that age or an activity protected by subsection (d) was a motivating factor for any practice, even though other factors also motivated the practice.
In establishing an unlawful practice under this Act, including under paragraph (1) or by any other method of proof, a complaining party—
may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that an unlawful practice occurred under this Act; and
shall not be required to demonstrate that age or an activity protected by subsection (d) was the sole cause of a practice.
.
Remedies
Section 7 of such Act (29 U.S.C. 626) is amended—
in subsection (b)—
in the first sentence, by striking The
and inserting (1) The
;
in the third sentence, by striking Amounts
and inserting the following:
Amounts
;
in the fifth sentence, by striking Before
and inserting the following:
Before
; and
by inserting before paragraph (4), as designated by clause (iii) of this subparagraph, the following:
On a claim in which an individual demonstrates that age was a motivating factor for any employment practice, under section 4(g)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
may grant declaratory relief, injunctive relief (except as provided in subparagraph (B)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 4(g)(1); and
shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.
; and
in subsection (c)(1), by striking Any
and inserting Subject to subsection (b)(3), any
.
Definitions
Section 11 of such Act (29 U.S.C. 630) is amended by adding at the end the following:
The term demonstrates means meets the burdens of production and persuasion.
.
Federal employees
Section 15 of such Act (29 U.S.C. 633a) is amended by adding at the end the following:
Sections 4(g) and 7(b)(3) shall apply to mixed motive claims (involving practices described in section 4(g)(1)) under this section.
.
Title VII of the Civil Rights Act of 1964
Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices
Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by striking subsection (m) and inserting the following:
Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin or an activity protected by section 704(a) was a motivating factor for any employment practice, even though other factors also motivated the practice.
.
Federal employees
Section 717 of such Act (42 U.S.C. 2000e–16) is amended by adding at the end the following:
Sections 703(m) and 706(g)(2)(B) shall apply to mixed motive cases (involving practices described in section 703(m)) under this section.
.
Americans With Disabilities Act of 1990
Definitions
Section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) is amended by adding at the end the following:
Demonstrates
The term demonstrates means meets the burdens of production and persuasion.
.
Clarifying prohibition against impermissible consideration of disability in employment practices
Section 102 of such Act (42 U.S.C. 12112) is amended by adding at the end the following:
Proof
Establishment
Except as otherwise provided in this Act, a discriminatory practice is established under this Act when the complaining party demonstrates that disability or an activity protected by subsection (a) or (b) of section 503 was a motivating factor for any employment practice, even though other factors also motivated the practice.
Demonstration
In establishing a discriminatory practice under paragraph (1) or by any other method of proof, a complaining party—
may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that a discriminatory practice occurred under this Act; and
shall not be required to demonstrate that disability or an activity protected by subsection (a) or (b) of section 503 was the sole cause of an employment practice.
.
Certain anti-retaliation claims
Section 503(c) of such Act (42 U.S.C. 12203(c)) is amended—
by striking The remedies
and inserting the following:
In general
Except as provided in paragraph (2), the remedies
; and
by adding at the end the following:
Certain anti-retaliation claims
Section 107(c) shall apply to claims under section 102(e)(1) with respect to title I.
.
Remedies
Section 107 of such Act (42 U.S.C. 12117) is amended by adding at the end the following:
Discriminatory motivating factor
On a claim in which an individual demonstrates that disability was a motivating factor for any employment practice, under section 102(e)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—
may grant declaratory relief, injunctive relief (except as provided in paragraph (2)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 102(e)(1); and
shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.
.
Rehabilitation Act of 1973
In general
Sections 501(f), 503(d), and 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 793(d), and 794(d)), are each amended by adding after title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)
the following: , including the standards of causation or methods of proof applied under section 102(e) of that Act (42 U.S.C. 12112(e)),
.
Federal employees
The amendment made by paragraph (1) to section 501(f) shall be construed to apply to all employees covered by section 501.
Application
This Act, and the amendments made by this Act, shall apply to all claims pending on or after the date of enactment of this Act.
Severability
If any provision or portion of a provision of this Act, an amendment or portion of an amendment made by this Act, or the application of any provision or portion thereof or amendment or portion thereof to particular persons or circumstances is held invalid or found to be unconstitutional, the remainder of this Act, the amendments made by this Act, or the application of that provision or portion thereof or amendment or portion thereof to other persons or circumstances shall not be affected.
Report by Government Accountability Office
Not later than 2 years after the date of the enactment of this Act, the Government Accountability Office shall submit to the Congress a report analyzing how the Equal Employment Opportunity Commission investigates mixed motive age discrimination claims arising under the Acts amended by this Act, focusing on—
the ability of the Commission to meet the demands of its workload under such Acts;
the plans of the Commission for investigating systemic age discrimination in violation of such Acts;
the plans of the Commission for litigation under such Acts; and
the options for improving the ability of the Commission to respond to allegations of age discrimination in violation of such Acts.
Study and report to Congress
Not later than 1 year after the date of the enactment of this Act, the Secretary of Labor and the Equal Opportunity Employment Commission shall jointly conduct a study to determine the number of claims pending or filed, in addition to cases closed, by women who may have been adversely impacted by age discrimination as a motivating factor in workplace discrimination or employment termination. The Secretary of Labor and Chairman of the Commission shall jointly submit to the Congress, and make available to the public, a report that contains the results of the study, including recommendations for best practices to prevent and to combat gender and age discrimination as it relates to women in the workplace.
Reports
For the 5-year period beginning on the date of the enactment of this Act, the Chairman of Equal Employment Opportunity Commission shall submit to the Committee on Education and Labor of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate a report at 1-year intervals on the number of age discrimination in employment claims brought under this Act with the Equal Employment Opportunity Commission in the period for which such report is submitted.
Report by the United States Commission on Civil Rights
Report
With funds appropriated in advance to carry out this section, and consistent with the operational and procedural requirements of the United States Commission on Civil Rights, the Commission shall submit to the appropriate committees of the Congress a report containing an analysis of the status of Federal mixed motive age discrimination in employment claims made against Federal agencies, including—
the number of such claims, specified by the Federal agency against which such claims are made; and
other related information the Commission determines to be appropriate.
Submission of report
The report required by subsection (a) shall be submitted not later that 5 years after the date of the enactment of this Act.
Passed the House of Representatives January 15, 2020.
Cheryl L. Johnson,
Clerk