- H.R. 3721, THE PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]

H.R. 3721, THE PROTECTING OLDER
WORKERS AGAINST DISCRIMINATION ACT

=======================================================================

HEARING

before the

SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR AND PENSIONS

COMMITTEE ON
EDUCATION AND LABOR

U.S. House of Representatives

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

__________

HEARING HELD IN WASHINGTON, DC, MAY 5, 2010

__________

Serial No. 111-61

__________

Printed for the use of the Committee on Education and Labor

Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice John Kline, Minnesota,
Chairman Senior Republican Member
Donald M. Payne, New Jersey Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey Howard P. ``Buck'' McKeon,
Robert C. ``Bobby'' Scott, Virginia California
Lynn C. Woolsey, California Peter Hoekstra, Michigan
Ruben Hinojosa, Texas Michael N. Castle, Delaware
Carolyn McCarthy, New York Mark E. Souder, Indiana
John F. Tierney, Massachusetts Vernon J. Ehlers, Michigan
Dennis J. Kucinich, Ohio Judy Biggert, Illinois
David Wu, Oregon Todd Russell Platts, Pennsylvania
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Tom Price, Georgia
Timothy H. Bishop, New York Rob Bishop, Utah
Joe Sestak, Pennsylvania Brett Guthrie, Kentucky
David Loebsack, Iowa Bill Cassidy, Louisiana
Mazie Hirono, Hawaii Tom McClintock, California
Jason Altmire, Pennsylvania Duncan Hunter, California
Phil Hare, Illinois David P. Roe, Tennessee
Yvette D. Clarke, New York Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California

Mark Zuckerman, Staff Director
Sally Stroup, Republican Staff Director

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

ROBERT E. ANDREWS, New Jersey, Chairman

David Wu, Oregon Tom Price, Geogia,
Phil Hare, Illinois Ranking Minority Member
John F. Tierney, Massachusetts John Kline, Minnesota
Dennis J. Kucinich, Ohio Howard P. ``Buck'' McKeon,
Marcia L. Fudge, Ohio California
Dale E. Kildee, Michigan Joe Wilson, South Carolina
Carolyn McCarthy, New York Brett Guthrie, Kentucky
Rush D. Holt, New Jersey Tom McClintock, California
Joe Sestak, Pennsylvania Duncan Hunter, California
David Loebsack, Iowa David P. Roe, Tennessee
Yvette D. Clarke, New York
Joe Courtney, Connecticut

C O N T E N T S

----------
Page

Hearing held on May 5, 2010...................................... 1

Statement of Members:
Andrews, Hon. Robert E., Chairman, Subcommittee on Health,
Employment, Labor and Pensions............................. 1
Prepared statement of the National Senior Citizens Law
Center................................................. 50
Price, Hon. Tom, Ranking Republican Member, Subcommittee on
Health, Employment, Labor and Pensions..................... 3
Prepared statement of.................................... 5

Statement of Witnesses:
Aldrich, Gail, member, board of directors, AARP.............. 10
Prepared statement of.................................... 12
Dreiband, Eric S., partner, Jones Day Law Firm............... 15
Prepared statement of.................................... 17
Foreman, Prof. Michael, director, civil rights appellate
clinic, Pennsylvania State University Dickinson School of
Law........................................................ 25
Prepared statement of.................................... 26
Gross, Jack, CPCU, CLU, ChFC................................. 7
Prepared statement of.................................... 9

H.R. 3721, THE PROTECTING OLDER WORKERS AGAINST DISCRIMINATION ACT

----------

Wednesday, May 5, 2010

U.S. House of Representatives

Subcommittee on Health, Employment, Labor and Pensions

Committee on Education and Labor

Washington, DC

----------

The subcommittee met, pursuant to call, at 10:30 a.m., in
room 2175, Rayburn House Office Building, Hon. Robert Andrews
[chairman of the subcommittee] presiding.
Present: Representatives Andrews, Hare, Tierney, Kucinich,
Fudge, McCarthy, Holt, Loebsack, and Price.
Staff Present: Aaron Albright, Press Secretary; Andra
Belknap, Press Assistant; Jody Calemine, General Counsel; David
Hartzler, Systems Administrator; Sadie Marshall, Chief Clerk;
Megan O'Reilly, Labor Counsel; Rachel Racusen, Communications
Director; James Schroll, Junior Legislative Associate, Labor;
Michele Varnhagen, Labor Policy Director; Matt Walker, Policy
Advisor, HELP; Kirk Boyle, Minority General Counsel; Ed Gilroy,
Minority Director of Workforce Policy; Rob Gregg, Minority
Senior Legislative Assistant; Brian Newell, Minority Press
Secretary; Jim Paretti, Minority Workforce Policy Counsel; Ken
Serafin, Minority Professional Staff Member; and Linda Stevens,
Minority Chief Clerk/Assistant to the General Counsel.
Chairman Andrews. Ladies and gentlemen, the committee will
come to order.
Welcome. We are pleased to have our witnesses with us this
morning and ladies and gentlemen of the public as well. The
crowd is small in quantity, but it will be great in quality, I
assure you. There is no question about that. And other Members
are expected to join us.
We would like to thank the witnesses for their astute
preparation for this morning.
I think most Americans--Democrat, Republican, liberal,
conservative--no matter where they are from, if they heard the
following story, would think that something was a little off.
If you took a person that had worked for an employer for a very
long time and, for 13 years running, had scored at the very top
of employment evaluations, the top 3 to 5 percent of people in
this person's field, and the employer that the person works for
merges with another company, and when the merger takes place--
they have a field office in Kansas and a field office in Iowa.
And what they essentially do is to say that all the people over
50 in the Kansas office we will offer an early buyout so they
can leave, and people over 50 in the Iowa office we will
essentially demote. And, as I understand it, only one person
who was under 50 is demoted, and that person is near 50 at the
time.
So the person who is affected by this, after 13 consecutive
years of scoring at the top of the list on achievement, sues
and claims, under the age discrimination statute, that he was
demoted because of his age. There is a trial that takes place
in Federal court in front of a jury. The jury listens to the
evidence in the case, deliberates for a week, comes back and
says, ``Yeah, we think that the employer violated the law here
and that this individual is entitled to recovery.'' I think
most people would say, okay.
The next thing that happens is the case goes up to the
court of appeals, and the court of appeals rules for the
employer, saying the jury was told the wrong thing that it
should look at in determining whether the plaintiff or
defendant was going to win.
And so the case goes up to the Supreme Court at that point,
and the Supreme Court looks at the issue and says, ``You know
what? The appellate court didn't even get the question right.''
So, when the question before the appellate court was when does
the burden of proof shift to the employer to show that they
weren't discriminating based on age, the Supreme Court says
that is not really the right question, because the way the law
is written, the burden of proof never--never--shifts to the
defendant, and unless the plaintiff can show that he was the
victim of discrimination, he loses.
Now, the question becomes, how do you show that? How do you
show that?
And I come at this issue from the belief that the vast
majority of employers in America are good-spirited, law-abiding
people who have no intention whatsoever to practice
discrimination against anybody and, in fact, who don't practice
discrimination against anybody. I think the majority of
employers in this country understand that you pick the best
person, whether the person is 61 or 21; whether the person is
African American, Asian American, Hispanic; whether the person
is old, young, male, female; someday whether the person is gay
or straight, you pick the best person. And failing to do that
is not very good for business.
But, you know, you have a situation here now where
employers I think have been given a road map as to how to make
it look like you are not making a decision based on age
discrimination and get away with it. And the way you do it is
to manufacture a rationale that says, well, this is about
productivity, or this is about the hours of effort that someone
can put in, or this is about some standard that doesn't look
like it is based on age but sure does have that effect.
The story that I tell is not hypothetical; it is Mr.
Gross's story. And he is here to testify about it this morning,
about what happened to him in his attempt to redress what he
believes and what I believe was a wrong that was done to him.
But the story really goes well beyond Mr. Gross to millions
of other Americans who are supposed to be protected by the age
discrimination statutes that govern employment. The question
really becomes, if you have to find a smoking gun, if you have
to find the foolish e-mail or foolish conversation or foolish
oral statement that was made that says, ``Yeah, we have had
enough of these old people here, they cost too much, their
benefits are too expensive, we have had enough of them; we want
to shift to a younger group because it is cheaper to run our
business that way,'' if you run into the rare foolish employer
who makes a statement like that, you can win. But it is a very
open question about what happens in the other 99-and-a-half
percent of the time when you don't run into a record that looks
like that. What are the ground rules for proving that you have
been a victim of age discrimination?
This is a very subtle and abstract legal issue, but it sure
isn't subtle and abstract in its effect on millions of people
in the workplace and in the country. I would be willing to
posit this morning that there is not a member of this committee
who believes that age discrimination is a proper practice in
the workplace. I know the ladies and gentlemen on both sides of
the dais, and I don't think anybody believes that. And I don't
think any witness believes that either; I am sure no witness
believes that.
But how we establish the ground rules for proving age
discrimination are very, very important. It is my belief that
the decision, which unfortunately bears the name of Mr. Gross,
unwillingly, subverts the opportunity for people to prove they
have been discriminated against when, in fact, they have been
discriminated against on the basis of their age.
Chairman Miller, Chairman Conyers, myself, Mr. Nadler, and
some others have introduced legislation in an attempt to, we
believe, come up with a more fair standard that is consistent
with the law that has governed this country for a very long
time.
Basically, that idea is that if you, as a person who
believes you have been discriminated against, can show evidence
that would raise that presumption, the burden then shifts to
the defendant to show that the defendant did not, in fact, base
their decision on age discrimination.
Now, we are going to have a vigorous discussion of whether
that is a good idea or a bad idea. And it is a discussion that
will commence today and, I think, go on into the future.
So I don't think the issue before the committee this
morning is whether people support age discrimination or not. I
don't think anyone here does. The issue, though, is what to do
about that. And I think we had an effective statute on the
books for a long time that was successful in achieving justice
for those who deserved it. And I think the decision of the
Supreme Court undercuts that decision and needs to be addressed
by the committee in that way.
I am now going to turn to turn to my friend who is the
senior Republican ranking member on the committee, Dr. Price,
for his opening statement.
Mr. Price. Thank you, Mr. Chairman.
I am privileged to serve as the ranking member of this
committee with a chairman that can spin all sorts of wonderful
yarns, and sometimes they actually bear some resemblance to the
truth. I won't opine as to whether or not the one that you just
heard did or not, but I will say and echo his comments, and
that is that this is an important issue. And so I want to thank
the witnesses for joining us today and to present your
experience, the information that you have. And, Mr. Gross, we
look forward to your testimony.
The issue before us today, as I mentioned, is truly an
important one. And to put it mildly, it is more than a little
complicated, especially for those of us who aren't lawyers. As
a physician, the first tenet of medicine is: First, do no harm.
And that is not oftentimes followed here in Washington, so I
think one of the concerns that I have, that we have, is to make
certain that we don't do harm, that we don't march down a road
that would result in significant unintended consequences.
Especially when an issue is so complicated and touching on a
matter as important as our civil rights laws, a close and
thorough examination is certainly warranted.
The bill before us comes in response to last year's Supreme
Court decision in Gross v. FBL Financial Services. In Gross,
the court held that, as a matter of the plain language of the
statute, a certain standard contained in Title VII of the Civil
Rights Act was not applicable to plaintiffs bringing claims of
age discrimination under a different statute, the Age
Discrimination in Employment Act.
And I think one can argue whether the Gross case was
properly decided by the Supreme Court. It was a narrowly
divided decision, as we all know, and included a very strong
dissent. Good minds can and will disagree over whether or not
the majority's holding was the correct one.
Now, what is beyond dispute, however, is that, despite its
title, the ``Protecting Older Workers Against Discrimination,''
this legislative remedy goes far beyond simply amending the Age
Discrimination in Employment Act in reversing the Gross
decision.
Make no mistake: This bill is not simply a, quote,
``restoration,'' unquote, of where the law stood the day before
the Gross case was decided. Instead, the bill before us
purports to apply to a vast and undefined range of laws,
Federal and possibly State, which might be characterized as
protecting against employment discrimination retaliation or
participation in workplace investigations.
We are deeply concerned that the vague and expansive reach
of this law will undo years of unsettled case law and practice
under statutes wholly unrelated to the Gross case or to the
protection of older workers. Indeed, in too many ways, this
legislation makes broad, substantive changes to our Nation's
civil rights laws under the facade of narrowly reversing a
single Supreme Court case.
With that in mind, I am truly interested in hearing from
our witnesses what the practical effects of the Gross decision
have been and what the practical application of the bill before
us might be. Is the bill properly drafted? Should it be more
narrowly targeted? Unintended consequences? What are we
overlooking, given the broad scope of the bill? And, at the end
of day, will the bill truly protect workers from discrimination
or simply be another boon for the trial lawyers?
I want to thank the chairman for organizing this hearing,
and I look forward to the testimony of the witnesses.
[The statement of Mr. Price follows:]

Prepared Statement of Hon. Tom Price, Ranking Republican Member,
Subcommittee on Health, Employment, Labor, and Pensions

Good morning and thank you, Chairman Andrews. I would like to begin
by thanking our distinguished panel for appearing today. We appreciate
that they have taken time out of their busy schedules to share their
experiences and expertise with us.
The issue before us is an important one, and, to put it mildly,
more than a little complicated--especially for those of us who are not
lawyers. But especially when an issue is so complicated--and touching
on as important a matter as our nation's civil rights laws--a close and
thorough examination is warranted.
The bill before us comes in response to last year's Supreme Court
decision in Gross v. FBL Financial Services. In Gross, the Court held
that as a matter of the plain language of the statute, a certain
standard contained in Title VII of the Civil Rights Act was not
applicable to plaintiffs bringing claims of age discrimination under a
different statute, the Age Discrimination in Employment Act.
Now one can argue whether the Gross case was properly decided by
the Supreme Court--it was a narrowly-divided decision, and included a
strong dissent. Good minds can and will disagree over whether the
majority's holding was the correct one. What is beyond dispute,
however, is that despite its title, ``Protecting Older Workers Against
Discrimination,'' this legislative remedy goes far beyond simply
amending the Age Discrimination in Employment Act and reversing the
Gross decision.
Make no mistake, this bill is not simply a ``restoration'' of where
the law stood the day before the Gross case was decided. Instead, the
bill before us purports to apply to a vast and undefined range of laws,
federal and possibly state, which might be characterized as protecting
against employment discrimination, retaliation, or participation in
workplace investigations.
I am deeply concerned that the vague and expansive reach of this
law will undo years of settled case law and practice under statutes
wholly unrelated to the Gross case, or to the protection of ``older''
workers. Indeed, in too many ways, this legislation makes broad
substantive changes to our nation's civil rights laws under the facade
of narrowly reversing a single Supreme Court case.
With this in mind, I am interested in hearing from our witnesses
what the practical effects of the Gross decision have been, and what
the practical application of the bill before us might be. Is the bill
properly drafted, or should it be more narrowly targeted? Unintended
consequences--what are we overlooking given the broad scope of the
bill? And, at the end of the day, will the bill truly protect workers
from discrimination, or simply be another boon to trial lawyers?
Thank you, Chairman, and I look forward to hearing from our
witnesses and exploring these matters further in the questioning
period.
______

Chairman Andrews. Thank you.
Without objection, opening statements from any of the
subcommittee members will be part of the record.
Here is how we are going to proceed. I am going to read the
biographies of our witnesses this morning. Without objection,
your written statements have been entered into the record and
made available to the Members, so we would ask each of the
witnesses to provide a 5-minute oral synopsis of their
testimony. After that, we will have rounds of questioning from
the members of the committee so we can engage in dialogue and
learn more about what you have to educate us about.
I am going to introduce the witnesses. And then, Mr. Gross,
we are going to start with you once the introductions are done.
Mr. Jack Gross recently retired from FBI Financial Services
after 29 years. Mr. Gross is the plaintiff in the case we will
examine today.
In 2003, he filed an age discrimination suit against his
employer, FBI Financial Services. A jury found that FBI had
discriminated against Mr. Gross when it demoted him because of
his age and awarded him--FBL, excuse me--FBI, Freudian slip
here.
The Supreme Court reversed that decision in 2009 and, in
doing so, overturned longstanding precedent. The bill before
us, H.R. 3721, would restore the law up to what it was prior to
the Supreme Court decision in Gross v. FBL Financial Services.
Mr. Gross has a BS from Drake University. He has two
beautiful grandchildren, he tells me. He made a particular
sacrifice to be here this morning. His wife of 43 years had an
emergency appendectomy very recently. And thank God she is
doing okay. But please tell her we hope she gets better. And we
appreciate your sacrifice in being here this morning.
Mr. Gross. Appreciate it.
Chairman Andrews. Ms. Gail Aldrich is a member of the Board
of Directors for AARP and an experienced executive with
expertise in human resource management. She served previously
as chief membership officer for the Society for Human Resource
Management, or SHRM.
Ms. Aldrich earned her BA from Eastern Michigan University,
has completed the Advanced Executive Program at UCLA, and has
been certified as a senior professional in human resources by
the Human Resource Certification Institute.
Welcome, Ms. Aldrich. We are glad that you are with us.
Mr. Eric Dreiband--did I pronounce your name correctly?
Mr. Dreiband. Yes.
Chairman Andrews [continuing]. Is a partner at the Jones
Day Law Firm, where he represents companies in all aspects of
civil rights, employment discrimination, and wage and hour
litigation.
Prior to joining Jones Day, Mr. Dreiband served as the
general counsel of the United States Equal Employment
Opportunity Commission and deputy administrator for the U.S.
Department of Labor's Wage and Hour Division.
Mr. Dreiband has his JD from Northwestern University, an
MTS from Harvard University, and a BA from one of the finest
institutions in America, Princeton University, which Mr. Holt
is very glad to hear about and represents and has been
associated with.
Welcome, Mr. Dreiband. I think you have been with us
before. It is good to have you with us again.
Mr. Dreiband. Thank you.
Chairman Andrews. Mr. Michael Foreman is a clinical
professor and director of the Civil Rights Appellate Clinic at
the Dickinson School of Law at Penn State. He previously served
as acting deputy general counsel for the U.S. Commission on
Civil Rights. Professor Foreman has a JD degree from Duquesne
University and a BA from Shippensburg University.
Welcome, Mr. Foreman.
Well, ladies and gentlemen, we are going to proceed with
the testimony.
Mr. Gross, you are up first. There is this battery of
lights in front of you. When the green light goes on, you are
on. When the yellow light appears, you have about a minute left
to go. And, in your case, please relax and don't let the lights
bother you, finish your story. When the red light appears--Mr.
Gross has been told a trapdoor would open under his chair. I
don't know where that vicious rumor got started. But, in your
case, we have locked the trapdoor and it will not open when you
finish.
Thanks for coming, Mr. Gross. You are on.

STATEMENT OF JACK GROSS, PLAINTIFF IN
GROSS V. FBL FINANCIAL SERVICES

Mr. Gross. Thank you, Chairman Andrews, Ranking Member
Price, and committee members. It is, indeed, an honor for me to
be here today and to be given an opportunity to speak out on
behalf of not only myself but millions of other older
Americans, all too many of whom have, like me, experienced age
discrimination in their work.
You invited me here to tell my story since I have become
the new name associated with age discrimination. While I am
here to tell you about the roller-coaster ride I have been on,
I ask that you remember that my story is being duplicated
millions of times across this country and ask you to envision
the millions who are depending upon your actions and standing
behind me today in spirit. I know they are.
I certainly never imagined that I would be here, that my
case would end up here, when it all started 7 years ago. That
is when my employer, Farm Bureau Insurance, or FBL, suddenly
demoted all claims employees who were over 50 and had
supervisory or higher positions.
I was included in that sweep even though I had 13
consecutive years of performance reviews in the top 3 to 5
percent of the company and had dedicated most of my working
career to making Farm Bureau a better company. My contributions
were exceptional, they were well-documented, and the jury heard
all about them.
Since age was the obvious reason, I filed a complaint, and
2 years later we had a very aggressive trial. The jury spent a
week listening to all the testimony, hearing all the evidence,
and being instructed on the law, your law. The verdict came
back in my favor, and I thought the ordeal was over in 2005. As
we now know, it was just the beginning.
After that, Farm Bureau appealed and got my verdict
overturned. Apparently, the court, the Eighth Circuit, felt
that, even though I had proved by a preponderance of the
evidence, I didn't produce the right kind of evidence by their
standards. They said that I had to have so-called ``direct
evidence.'' We are not sure, even today, what that meant. But
that left us no choice but to appeal it to the Supreme Court.
We felt honored and privileged. We know that there are some
10,000 appeals to the Supreme Court each year, and they can
accept about 70. So we were pretty excited when we got to be
one of those 7O. And we were, frankly, very optimistic. We knew
that we had a lot of core precedents, we had a lot of ensuing
legislation beyond the original ADA, all working in our favor.
And we, frankly, came to Washington, D.C., expecting to win at
that level.
We got a shock. At the Supreme Court, our attorney made a
15-minute presentation; the solicitor general made a 15-minute
presentation on our behalf. And then the Supreme Court did
something totally unexpected: They broke with their own
protocol and allowed the defense to advance an entirely new
argument, one that had not been advanced before. It had the not
been briefed. We had no chance to prepare a rebuttal. And
rather than answer the question that we had submitted and that
they had agreed to hear, they basically asked their own
question and answered their own question in a way that went
totally beyond what was ever envisioned.
And the net effect, as far as we were concerned, was to
water down the Age Discrimination in Employment Act as it was
written by this branch of government, the branch closest to the
people, and what we thought we clearly understood it was
designed to do. So, needless to say, we were disappointed and
disillusioned when they did that.
Since the Supreme Court's decision in my case, I have been
particularly distressed over the collateral damage that has
been inflicted on other older workers because of the Court's
ruling. I hate having my name associated with the pain and
injustice now being inflicted on other older workers because it
is now nearly impossible to provide the level of proof that is
required by this Court. I have to keep reminding myself that I
am not one who changed your law. Five justices, maybe one
justice, was the one that actually changed everything.
I believe Congress has a long and distinguished history of
working together on a very bipartisan basis to create and
maintain a level playing field in the workplace. The ADEA is
just one example. And, to me, that just simply states that
everyone has the right to be judged based on their ability on
the job regardless of the number of gray hairs, number of
birthdays that they have celebrated. And I am here to urge you,
on behalf of myself and the millions who are behind me, to
continue working in that same bipartisan spirit to pass this
bill, the Protecting Older Workers Against Discrimination Act,
in the same bipartisan spirt that you have shown in the past.
I grew up in a small town in southern Iowa in which has
traditionally been called the poverty county of the State. It
is the only county that doesn't have a single stoplight. It is
a farm community, very close-knit. Everybody knows everybody.
My wife is from the same area, and we started going together in
1967--I was 19 years old--the same year you passed the Age
Discrimination Act.
My early life was pretty much defined by some chronic
health problems. I developed chronic colitis at age 5 and
endured that until I was 30. We had to overcome a lot. We
started off our married life with absolutely nothing but a
strong work ethic and a determination to build a good life
together, and we did so against all odds. As was said, we have
two wonderful grown children, two adorable grandchildren who
are the lights of our lives.
I am before you today as a man who agonized over the
decision to pursue this case. It wasn't like me. One of the
prospective jurors during voir dire made the comment that she
just couldn't understand how anybody could sue anybody who
would give them a job, and her words resonated with me very
strongly. We agonized. We thought about it. We sat down and we
prayed about it. We decided it had to be done. We left the
outcome in God's hands. And if my experience eventually
prevents anyone else from having to endure the pain and
humiliation of discrimination, I will always believe that this
effort was part of God's plan for my life and, by extension,
perhaps for yours.
Thank you.
[The statement of Mr. Gross follows:]

Prepared Statement of Jack Gross, CPCU, CLU, ChFC

Thank you Chairman.
I'm honored to be here and to be given an opportunity to speak out
on behalf of the baby boomer generation, many of whom like me, have
experienced age discrimination. You invited me here to share my story
since I have, because of a Supreme Court ruling, become the new name
associated with age discrimination. I am happy to do so.
To me, of course, my story is personal and unique. I ask you to
keep in mind, however, that key aspects of my story have, and are being
duplicated millions of times across this country. Please, envision
those millions who are depending on you standing behind me today. In
spirit, they are.
I certainly never imagined that my case would end up here when it
all started over seven years ago. That is when my employer, Farm Bureau
Insurance, or FBL, merged with the Kansas Farm Bureau. Apparently not
wanting to add any more older workers, they offered the Kansas claims
employees who were over 50 a buyout to purge them from the company. At
the same time, they just demoted all claims employees in the Iowa
operation who were 50 and over and had supervisory or higher positions.
Only one person who was under 50, but approaching it, was demoted.
Being 54 at the time, I was included in that sweep, even though I
had 13 consecutive years of performance reviews in the top 3-5% of the
company, and had dedicated most of my working career to making Farm
Bureau a better company. My contributions were exceptional and well
documented. Not least was managing what Farm Bureau called it's biggest
undertaking ever. In 1997, I was asked to take all of our existing
property and casualty policies, re-write them in a way they could be
easily understood, and combine them into a totally unique package
policy unlike anyone else had in our market. And, they asked me to do
it in a year. I did, and it is still their exclusive and very popular
modular product, upon which they are basing their future. That was only
one of many valuable contributions I made to FBL, but my time is
limited. The jury that decided my case heard all about them.
Since age was the obvious reason, I filed a complaint, and two
years later a federal jury spent a week listening to all the testimony,
seeing all of the evidence, and being instructed on the ADEA. They were
also instructed to rule in my favor if I had proved by a preponderance
of evidence that age was a motivating factor, and also that they should
rule in favor of FBL if they could find any reason, other than age, for
my demotion. The verdict came back in my favor, and I thought the
ordeal was over in 2005. As we now know, it was just the beginning.
After that, FBL appealed and got my jury verdict overturned on what
I consider a technicality in the jury instruction. Apparently, most
courts said that, in a so-called mixed motive case, any kind of
evidence was sufficient. But, the 8th Circuit said I had to have so-
called ``direct'' evidence. That left us no choice but to appeal it to
the Supreme Court.
We were optimistic and grateful when the court accepted cert on
whether direct evidence was required to get a mixed-motive instruction.
Precedent and legislation, we felt, were overwhelmingly on our side. At
the hearing, however, the Supreme Court broke their own protocol and
allowed the defense to advance an entirely new argument. It had not
been briefed, nor had we been given an opportunity to prepare a
rebuttal. To make a long story short, the court essentially hijacked my
case and used it as a vehicle to water down the ADEA, a law written by
the branch of government closest to the people. Editorials and bloggers
dubbed me this year's Lily Ledbetter. (I take that as a compliment.)
My wife and I came to this town last March expecting to see our
high court at its best. We believed in the rule of law and its
consistent application to all areas of discrimination. Needless to say,
we were disappointed, disillusioned, and quite frankly embarrassed by
the arrogance we witnessed. I felt the High Court had pulled a ``bait
and switch'' on me.
As it stands now, I have a new trial scheduled for November of this
year, nearly eight years after the unjustified and unlawful demotion.
In that time, witnesses have moved out of state, memories have faded,
and the court has changed the rules. My trust in the judicial system is
shattered. I used to believe that our courts tried to uphold and
sanctify the decisions of our citizen juries, instead of second-
guessing their ability to understand the letter and spirit of the law.
That is the story of my discrimination experience. I don't have
time to share much of my personal background, so I'll be very brief. I
grew up in a small town in southern Iowa. My dad was a highway
patrolman and my mother a school teacher. I overcame chronic health
problems to achieve my education and success. My wife, to whom I've
been married for 43 years, and I started with absolutely nothing but a
determination to build a good life, and we did against all odds. We
have two wonderful grown children and two grandchildren who are the
lights of our lives. I am very proud of my family and of my
professional accomplishments.
Since I was integrally involved in defending FBL for many years as
a claims manager, I am probably an unlikely candidate to be here. We
believe that is the reason FBL has defended this case so aggressively,
and that it explains the intensity of the retaliation I endured over
the past seven years while the litigation proceeded. I finally retired
last December because the stress of that retaliation was causing me
health problems.
Since the Supreme Court's decision in my case, I have been
particularly distressed over the collateral damage that is being
inflicted on others because of the Court's ruling. I hate having my
name associated with the pain and injustice now being inflicted on
older workers, because it is nearly impossible to provide the level of
proof now required by the Court. I have to keep reminding myself that
I'm not the one who changed the law. Five powerful men in black robes
did it.
As a citizen, I believe this body -Congress- has a long history of
working together, on a bi-partisan basis, to create and maintain a
level playing field in the workplace. The ADEA, and the ensuing
legislation that reinforced it's intent, is but one example. As a
citizen, it clearly says to me that congress intended to put an end to
discrimination in employment practices. I believe the same is true for
most jurors. We don't parse individual words the way judges and some
attorneys do. We know what ``is'' is. The ADEA simply states that it
shall be unlawful to discriminate because of age. We get it. This
Supreme Court apparently doesn't. Justice Thomas challenged you to
state that age has to be ``a motivating factor'' if that is what you
intended. The Protecting Older Workers Against Discrimination Act does
that, and I urge you, on behalf of myself and the millions of baby
boomers behind me who have been paying the bills for a generation and
want to continue working, to pass it in the same bi-partisan spirit
you've shown in the past.
Finally, one of my jurors, during voir dire, said that she just
couldn't understand how a man could sue a company that gave him a job.
Her words resonated with me. I agonized over the decision to pursue
this. The folks standing behind me understand. My wife and I prayed
about it, decided it had to be done, and then we left the outcome in
God's hands. If my experience eventually prevents anyone else from
having to endure the pain and humiliation of discrimination, I will
always believe that this effort was part of God's plan for my life.
Thank you
______

Chairman Andrews. Well, Mr. Gross, thank you very much.
That was a very moving and heartfelt statement, and we
appreciate the way you have brought your personal experiences
to bear. As I said to you when I met you this morning, I am
sorry you are here. I wish that the circumstances that led to
your appearance had not happened.
And you were doing very well until you mentioned the, sort
of, gray hair test, which a lot of us on the committee take a
little personally. And so you did well up to that point, but I
think we will forgive you for that.
Ms. Aldrich, you are up.

STATEMENT OF GAIL E. ALDRICH, MEMBER,
BOARD OF DIRECTORS, AARP

Ms. Aldrich. Thank you.
Good morning, Chairman Andrews and Ranking Member Price. My
name is Gail Aldrich. I am an AARP board member, and I am
pleased to testify today on behalf of older workers.
Older workers have long been an AARP priority. And roughly
half of all AARP members are employed either full- or part-
time. We advocate for older workers in Congress and before the
courts to combat age discrimination. In addition, AARP
participates in the Senior Community Service Employment
Program. We annually recognize best employers for workers over
age 50. And we organize job fairs, allowing employers and older
workers to find one another.
Before I became an AARP board member, I was a business
executive responsible for applying Federal and State employment
laws on a day-to-day basis. I previously served as chief
membership officer of the Society for Human Resource
Management, and I have been the top HR officer for three
organizations. As a result, I am very familiar with the
challenges of addressing age and other discrimination claims by
employees.
I want to thank you and all members of this Education and
Labor subcommittee for extending AARP this opportunity to speak
on the issue of protecting older workers against age
discrimination and about the proposed legislation to address
the U.S. Supreme Court's very troubling decision last year in
Gross v. FBL Financial Services.
AARP thinks the decision is wrong and that the Court's
interpretation of what Congress meant when it enacted the ADEA
is inaccurate. Unless corrected, this decision will have
devastating consequences for older workers.
The decision could not have come at a worse time for older
workers, who are experiencing a level of unemployment and job
insecurity that has not been seen since the late 1940s. This
decision takes away a vital legal protection at the very time
that the economy does not give older workers the luxury of
ignoring the discrimination and simply finding another job.
The unemployment rate for people over 55 has more than
doubled since the start of the recession, rising from 3.2
percent in December of 2007 to 6.9 percent in March of 2010.
Once out of work, older workers or older job seekers face a
prolonged and often discouraging job search. The average
duration of unemployment has soared since the start of the
recession and is substantially higher for older job seekers.
Over half of job seekers over age 55 are found among the long-
term unemployed, those who have been out of work for 27 weeks
or more. Once out of work, older persons are more likely than
younger unemployed to stop looking for work and to drop out of
the labor force.
Older workers need effective age discrimination laws when
employers choose to displace them based on their age due to
stereotypes rather than performance or other legitimate
business reasons. And, clearly, unfounded stereotypes about
older workers linger. AARP attorneys have battled employer
perceptions that older workers have less energy and are less
engaged despite our research at AARP showing that, actually,
older workers are more engaged in their jobs and are more
reliable.
Some employers believe older workers are a poor investment
for participation in training. However, AARP research shows
that they are more loyal to their current employers and may be
better training investments. And, finally, some employers have
outdated notions that older workers are unable to adapt in
industries like computers and information technology. This,
despite us baby boomers who are enthusiastic about embracing
all kinds of rapidly changing IT products and services.
Failing to allow older workers a fair chance to fight age
discrimination is directly contrary to other Federal policies
envisioning that Americans will work longer. For instance, the
1983 Social Security amendments increased the age of
eligibility for full benefits to be paid. Eliminating
discrimination is critical if older workers are to delay their
date of retirement. Working longer is good for society because
earners typically pay more in taxes than retirees. It is also
good for workers, who have more years to save and less time in
retirement that they have to finance. And it is good for
employers, who retain skilled and experienced employees.
AARP strongly favors and endorses H.R. 3721. It would
eliminate the second-class status for victims of age bias that
the Court in the Gross decision seemed to embrace. In the worst
economic conditions in decades for older workers, Congress
should act now to correct this misguided ruling.
Thank you.
[The statement of Ms. Aldrich follows:]

Prepared Statement of Gail Aldrich, Member, Board of Directors, AARP

Good Morning Chairman Andrews and Ranking Member Price: My name is
Gail Aldrich. I am a member of the Board of Directors of AARP and I am
pleased to testify today on behalf of AARP. Older workers have long
been an AARP priority, and roughly half of all AARP members are
employed either full or half-time. On behalf of AARP's members and all
older workers, we advocate for older workers both in Congress and
before the courts to combat age discrimination. AARP also participates
in the Senior Community Service Employment Program (SCSEP) in which we
match lower-income older jobseekers and employers with available
positions. We also annually recognize ``Best Employers'' for workers
over age 50, and partner with employers stating a commitment to welcome
older persons into their workforce as part of an AARP ``National
Employer Team.'' We also organize job fairs allowing employers and
older workers to find one another.
I want to preface my remarks by noting that before I became an AARP
Board member, I was formerly a business executive, responsible for
applying federal and state employment laws on a day-to-day basis.
Specifically, I previously served as chief membership officer for the
Society for Human Resources Management (SHRM). During my career, I also
have been the lead human resources professional for three major
organizations: the California State Automobile Association, Exponent,
an engineering and scientific consulting firm, and the Electric Power
Research Institute. As a result, I am quite familiar with the
challenges of addressing age or other discrimination claims by
employees.
I want to thank you and all members of the Education and Labor
Subcommittee on Health, Employment, Labor and Pensions for extending
AARP this opportunity to speak on the issue of protecting older workers
against age discrimination, and in particular, the topic of proposed
legislation to address the U.S. Supreme Court's troubling decision last
year in Gross v. FBL Financial Services, Inc., No. 08-441, 129 S. Ct.
2343 (June 18, 2009). In that decision the Supreme Court, by the
narrowest of margins, announced 5-4 that older workers challenging
unfair treatment based on their age, under the Age Discrimination in
Employment Act (ADEA), have lesser protection than other workers
protected by federal law against illegal bias. Older workers, the Court
said, have to meet a higher standard to prove discrimination than
workers facing bias based on their sex, race or national origin. In
effect, the Court said that Congress intended--when it passed the ADEA
back in 1967--to place older workers in a second-class category of
protection from unfair treatment at work. We at AARP think this
decision is wrong, and that the court's understanding of what Congress
meant when it enacted the ADEA is inaccurate. Unless corrected, this
decision will have devastating consequences for older workers--workers
who represent a growing share of the U.S. workforce and are
increasingly critical to the nation's economic recovery.
The Supreme Court's decision in Gross v. FBL could not have come at
a worse time for older workers, who are experiencing a level of
unemployment and job insecurity not seen since the late 1940s. Over the
past 28 months (December 2007 through March 2010), finding work has
proven elusive for millions of younger and older workers as employers
have laid off workers and scaled back hiring due to reduced demand.
However, older workers face another barrier--age discrimination. Age
discrimination is difficult to quantify, since few employers are likely
to admit that they discriminate against older workers. Available
research does highlight, however, the extent to which younger job
applicants are preferred over older ones, who more often fail to make
it through the applicant screening process.\1\ Older workers themselves
see age discrimination on the job: 60 percent of 45-74-year-old
respondents to a pre-recession AARP survey contended that based on what
they have seen or experienced, workers face age discrimination in the
workplace.\2\ That percentage could well be higher if those workers
were asked about age discrimination today. More age discrimination
charges were filed with the Equal Employment Opportunity Commission
(EEOC) in FY 2008 and FY 2009 than at any time since the early 1990s,
according to the latest EEOC data.\3\
---------------------------------------------------------------------------
\1\ M. Bendick, L. E. Brown, and K. Wall, ``No Foot in the Door: An
Experimental Study of Employment Discrimination against Older Workers,
Journal of Aging & Social Policy, 1999 10(4), 1999, pp. 5-23; J. Lahey,
Age, Women, and Hiring: An Experimental Study (Chestnut Hill, MA:
Center for Retirement Research at Boston College, 2006).
\2\ AARP, Staying Ahead of the Curve 2007: The AARP Work and Career
Study (Washington, DC: AARP, 2008).
\3\ U.S. Equal Employment Opportunity Commission, April 29, 2010 at
http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.
---------------------------------------------------------------------------
One of the ways in which the Gross decision already has affected
older workers is to make it impossible in some circumstances to bring
age discrimination claims. Some courts have interpreted the Gross
Court's language to require proof that age bias was a ``sole cause'' of
an unfair termination, or as in Jack Gross' case, an unfair demotion.
Thus in one recent case in Alabama, the plaintiff alleged both race and
age discrimination. Culver v. Birmingham Bd. of Education, 2009 WL
2568325 (N.D. Ala. August 17, 2009). Relying on Gross, the court
ordered Mr. Culver to either abandon his age claim or his race
discrimination claim because ``Gross h[eld] for the first time that a
plaintiff who invokes the ADEA has the burden of proving that the fact
that he is over 40 years old was the only * * * reason for the alleged
adverse employment action.'' This was never the law before Gross, and
it makes no sense now. Surely Congress meant for victims of age and
other bias to bring claims on whatever grounds they can assemble proof
to support a charge of discrimination. Not to choose between one of
several grounds of illegal unfair treatment. Similarly, in a case in
Pennsylvania, a federal court recently relied on Gross to force a
plaintiff to choose between claims of age and sex discrimination.
Wardlaw v. City of Philadelphia Streets Dep't, 2009 WL 2461890 (E.D.
Pa. Aug. 11, 2009). The court cited the plaintiff's allegations that
she was treated less favorably because she was an ``older female'' to
conclude that her age was not the ``but-for'' cause of the
discrimination she complained of According to this court, ``The Supreme
Court held in Gross that a plaintiff can only prevail on an age-related
employment discrimination claim if that is the only reason for
discrimination.'' Once again, AARP submits this makes no sense and
fundamentally misunderstands the ADEA. We cannot wait for these sorts
of rulings to spread. This must end.
Thus, AARP strongly endorses the Protecting Older Workers Against
Discrimination Act or ``POWADA'', H.R. 3721, of which many members of
this Committee are a sponsor. POWADA would correct the wrong turn in
the law that the Gross decision represents. It would eliminate the
second-class status for victims of age bias that the Court in Gross
seemed to embrace. It would tell lower courts not to treat older
workers who face discrimination law differently, in key respects, than
they treat workers who face bias on grounds of race or sex under Title
VII of the 1964 Civil Rights Act. Congress, after all, consistently has
followed Title VII as the model for other employment discrimination
laws, like the ADEA and the Americans with Disabilities Act.
Let me say a few more words about the impact on older workers of
this Court decision. It takes away a vital legal protection at the very
time that the economy does not give older workers the luxury of
ignoring discrimination and simply finding another job.
The unemployment rate for persons aged 55 and over has more than
doubled since the start of the recession, rising from 3.2 percent in
December 2007 to 6.9 percent in March 2010. Although the unemployment
rate for this age group has traditionally been and remains lower than
that for younger persons, the increase in unemployment for older
persons has been greater, thus significantly narrowing the age gap in
unemployment.
Once out of work, older job seekers face a prolonged and often
discouraging job search. Newspapers and news programs have profiled
many older jobs seekers who report sending out hundreds of resumes and
receiving few if any responses from employers. Statistics back up the
anecdotes of the job-seeking frustrations of older workers. Average
duration of unemployment has soared since the start of the recession
and is substantially higher for older job seekers than it is for their
younger counterparts--38.4 weeks verse 31.1 weeks in March--a
difference of nearly two months. In December 2007, average duration of
unemployment for older persons was 20.2 weeks.
Older workers also are more likely to be found among the long-term
unemployed--those who have been out of work for 27 or more weeks. Just
over half (50.6 percent) of job seekers aged 55 and over and 42 percent
of those under age 55 could be classified as ``long-term'' unemployed
in March. Once out of work, older persons are more likely than the
younger unemployed to stop looking for work and drop out of the labor
force. If they do find work, they are more likely than younger job
finders to earn less than they did in their previous employment.
Today, older workers are more likely than younger workers to be
displaced. As of December 2009, 78 percent of unemployed workers aged
55 and over were out of work because they lost their jobs or because a
temporary job ended. This compares to 65 percent of the unemployed
under age 55. Job loss has risen substantially for both age groups
since the start of the recession two years earlier and far more than it
had in the two years before December 2007. (See Table 1.)
Hence, older workers need effective age discrimination laws when
employers choose to displace them based on their age, due to
stereotypes or other forms of bias, rather than their performance or
other legitimate business reasons. And there can be no doubt that
unfounded stereotypes about older workers linger. In cases in which
AARP has played a role over the last decade, AARP attorneys have
battled employer perceptions that older workers have less energy and
are less engaged, despite AARP research data showing that on the
contrary, older workers are more engaged in their jobs, as well as more
reliable (i.e., less likely to engage in absenteeism). Some employers
also still believe older workers are a poor investment and are
disinclined to include them in training programs. Again, AARP research
shows that older workers are more loyal to (i.e., less likely to leave)
their current employers, and thereby may be better bets in terms of
employer investments in training. And finally, some employers have
outdated notions of older workers as incapable of adapting in
industries--such as computers and information technology--requiring
acquisition of new skills, despite Baby Boomers' enthusiastic embrace
of virtually all forms of rapidly changing IT products and services.
Research also shows why failing to protect older workers from
discriminatory exclusion from employment is not only unjust but also
counterproductive for a nation facing enormous challenges supporting a
growing aging population. That is, there is growing evidence that older
persons need to work and that they would benefit financially from
working longer: millions lack pension coverage, have not saved much for
retirement, have lost housing equity, and have seen their investment
portfolios plummet. Many have exhausted their savings and tapped their
IRA and 401(k) accounts while unemployed. Some workers seem to be
opting for Social Security earlier than they might have otherwise. The
Urban Institute (UI), for example, points to a surge in Social Security
benefit awards at age 62 in 2009. To a large extent, this is a result
of a sharp rise in the aged 62 population. However, the UI reports that
the benefit take-up rate was substantially higher in 2009 than in
recent years, which they say is likely due to an inability to find
work.\4\ One out of four workers in the 2010 Retirement Confidence
Survey maintains that their expected retirement age has increased in
the past year, most commonly because of the poor economy (mentioned by
29 percent) and a change in employment situation (mentioned by 22
percent).\5\
---------------------------------------------------------------------------
\4\ R. W. Johnson and C. Mommaerts, Social Security Retirement
Benefit Awards Hit All-Time High in 2009, Fact Sheet on Retirement
Policy (Washington, DC: Urban Institute, 2010).
\5\ EBRI, ``The 2010 Retirement Confidence Survey: Confidence
Stabilizing, but Preparations Continue to Erode,'' EBRI Issue Brief,
No. 340, March 2010 at www.ebri.org/pdf/briefspdf/EBRI--IB--03-2010--
No340--RCS.pdf.
---------------------------------------------------------------------------
Failing to allow older workers a fair chance to fight age
discrimination is directly contrary to other federal policies
envisioning that Americans will work longer. Public policies such as
the 1983 Social Security amendments that increased the age of
eligibility for full benefits and the benefits for delaying retirement,
as well legislation in 2000 that eliminated the Social Security
earnings test for workers above the normal retirement age, were
designed to encourage longer work lives. Eliminating discrimination is
critical if older persons are to push back the date of retirement.
Working longer is good for society as earners typically pay more in
taxes than retirees and contribute to the productive output of the
economy. It is also good for workers, who have more years to save and
less time in retirement to finance. And it is good for employers who
retain skilled and experienced employees. This last advantage may be
less clear in a deep recession; however, the economy will recover
eventually--we hope sooner rather than later! With the impending
retirement of the boomers, many experts predict sizable labor and
skills shortages in many industries.
In closing, I want to emphasize AARP's commitment to vigorous
enforcement of the ADEA and other civil rights law as one part of a
broad-based strategy to serve the needs and interests of older workers
consistent with the overall public interest. We recognize that prudent
employers, indeed we hope most employers, follow the law and respect
the rights of older workers. But we also believe that the ADEA and
other civil rights law must be preserved so that they act as a real
deterrent, and if need be, a tool for redress, when employers are
tempted to discriminate or actually violate the rights of older
workers. Unless POWADA returns the law to the state of affairs that
existed before the Gross decision, legal advocates will have a very
hard time defending older workers who encounter workplace bias. And we
also urge Congress to make sure that POWADA protects older workers from
the expansion of the reasoning in Gross to other employment laws. For
instance, we are aware of decisions restricting application of other
laws important to older workers--such as the ADA and ERISA, see
Serwatka v. Rockwell Automation, Inc.,--F.3d----, 2010 WL 137343 (7th
Cir., January 15, 2010) (NO. 08-4010)(ADA) and Nauman v. Abbott
Laboratories, CA 04-7199 (N.D. Ill. April 22, 2010)--based on the
flawed logic of the narrow Supreme Court majority in Gross.
We believe the Protecting Older Workers Against Discrimination Act
(POWADA), H.R. 3721, is a vital and reasonable effort to restore the
law to the state of play prior to the Gross decision. At that time,
employers were able to manage their proof obligations in ADEA cases.
Virtually no court in the U.S. believed age had to be the only reason
for an employer terminating an older worker for the worker to have a
claim under the ADEA. But now, based on Gross, some courts have been
embracing this new and onerous interpretation. And the same view has
been applied to other civil rights laws, to the detriment of older
workers and other discrimination victims. This is not right. In the
worst economic conditions in decades for older workers, Congress should
act now to correct the misguided ruling in the Gross decision and pass
POWADA.
Thank you.

TABLE 1.-PERCENT OF WORKERS GIVING JOB LOSS OR END OF TEMPORARY JOB AS THE REASON THEY WERE UNEMPLOYED, BY AGE,
DECEMBER 2005, DECEMBER 2007, AND DECEMBER 2009
----------------------------------------------------------------------------------------------------------------
Age and reason for unemployment December 2005 December 2007 December 2009
----------------------------------------------------------------------------------------------------------------
Aged 55+:
Job loser/on layoff...................................... 21.0 23.8 14.0
Other job loser.......................................... 33.8 36.8 55.8
Temporary job ended...................................... 8.3 8.2 8.6
--------------------------------------------------
Total.................................................. 63.1 68.8 78.4
==================================================
Under Age 55:
Job loser/on layoff...................................... 13.7 13.2 11.0
Other job loser.......................................... 25.9 26.9 43.9
Temporary job ended...................................... 11.0 12.5 9.8
--------------------------------------------------
Total.................................................. 50.6 52.6 64.7
----------------------------------------------------------------------------------------------------------------
Source: AARP PPI calculations of data in the Current Population Survey.

______

Chairman Andrews. Ms. Aldrich, thank you for your testimony
and your participation this morning.
Mr. Dreiband, welcome to the committee.

STATEMENT OF ERIC S. DREIBAND, FORMER GENERAL COUNSEL, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PARTNER, JONES DAY LAW
FIRM

Mr. Dreiband. Good morning, Chairman Andrews, Ranking
Member Price, and members of the subcommittee. I thank you and
the entire committee for affording me the privilege of
testifying today. My name is Eric Dreiband, as you mentioned,
Chairman Andrews, and I am a partner at the law firm of Jones
Day here in Washington, D.C.
I am here today at your invitation to speak about the
proposed Protecting Older Workers Against Discrimination Act. I
do not believe the bill would advance the public interest. In
particular, the bill, as drafted, will do nothing to protect
workers from age discrimination, other forms of discrimination,
retaliation, or any other unlawful conduct. I stay this for
three reasons.
First, the bill incorrectly asserts that the decision by
the Supreme Court of the United States in Gross v. FBL
Financial Services eliminated protection for many individuals.
The Gross decision, however, does not eliminate any protections
for victims. Before the decision, age discrimination defendants
could prevail, even when they improperly considered a person's
age, if they demonstrated that they would have made the same
decision or taken the same action for reasons unrelated to age.
The Court's decision stripped away this so-called ``same
action'' or ``same decision'' defense, and it, therefore,
deprived entities that engage in age discrimination of this
defense.
For this reason, since the Gross decision was issued, the
Federal courts have repeatedly ruled in favor of discrimination
plaintiffs and against defendants. In fact, the United States
Courts of Appeals for the First, Second, Third, Fifth, Sixth,
Seventh, Eighth, Ninth, 10th, and 11th Circuits have relied
upon the Gross decision to issue decisions in favor of
plaintiffs.
Second, the bill will restore the same action defense
eliminated by the Gross decision. Discrimination victims may
prove that a protected trait, such as age, was a motivating
factor for a particular practice complained of, yet still lose
their case. This is because the bill would deprive
discrimination victims of any meaningful remedy in so-called
``same action'' cases. Their lawyers may receive payment for
fees directly attributable to the pursuit of a motivating
factor claim, but the alleged victim will get nothing--no job,
no money, no promotion, nothing.
Mr. Gross, for example, will receive nothing if he proves
upon retrial that age motivated his employer to demote him and
his employer establishes its same action defense. He may win a
moral victory, perhaps, but nothing else. And the bill may
enable some lawyers to earn more money, but who does this
benefit? The answer is lawyers, not discrimination victims, not
unions, and not employers.
Third, the bill is overly broad, vague, and ambiguous and
may open up a Pandora's box of litigation. It purports to apply
to any Federal law forbidding employment discrimination and
several other laws, but the bill does not identify which laws
it will amend. As a result, discrimination victims, unions,
employers, and others will unnecessarily spend years or decades
and untold amounts of money fighting in court about whether the
bill changes particular laws.
The public will have to wait years or decades until the
matter trickles up to the Supreme Court to settle the question,
case by case, about one law after another. In the meantime,
litigants in courts will waste time, money, and resources
litigating this issue with no benefit for anyone. The threat of
decades of litigation about these issues is not merely
hypothetical. Note in this regard that it took 38 years of
litigation before the Supreme Court finally decided in 2005
that the Age Discrimination in Employment Act permits claims
for unintentional age discrimination.
Congress can fix this vagueness problem rather easily by
amending the bill to apply solely to the Age Discrimination in
Employment Act, which was the only statute at issue in Mr.
Gross's case, or, at a minimum, listing the laws that Congress
intends to amend. The recently acted Lilly Ledbetter Fair Pay
Act of 2009 specifically identified the laws it amended, and
Congress can do the same here.
Thank you, and I look forward to your questions.
[The statement of Mr. Dreiband follows:]

Prepared Statement of Eric S. Dreiband, Partner, Jones Day Law Firm

I. Introduction
Good morning Chairman Andrews, Ranking Member Price, and Members of
the Committee. I thank you and the entire Committee for affording me
the privilege of testifying today. My name is Eric Dreiband, and I am a
partner at the law firm Jones Day here in Washington, D.C.
I previously served as the General Counsel of the United States
Equal Employment Opportunity Commission (``EEOC'' or ``Commission'').
As EEOC General Counsel, I directed the federal government's litigation
of the federal employment discrimination laws. I also managed
approximately 300 attorneys and a national litigation docket of
approximately 500 cases.
During my tenure at the EEOC, the Commission continued its
tradition of aggressive enforcement. We obtained relief for thousands
of discrimination victims, and the EEOC's litigation program recovered
more money for discrimination victims than at any other time in the
Commission's history. The Commission settled thousands of charges of
discrimination, filed hundreds of lawsuits every year, and recovered,
literally, hundreds of millions of dollars for discrimination victims.
I am here today, at your invitation, to speak about the proposed
Protecting Older Workers Against Discrimination Act, H.R. 3721. I do
not believe that the bill would advance the public interest.
First, the bill incorrectly asserts that the decision by the
Supreme Court of the United States in Gross v. FBL Financial Services,
Inc. eliminated ``protection for many individuals whom Congress
intended to protect.'' In fact, the Gross decision will not eliminate
protections at all. Before the Gross decision, age discrimination
defendants could prevail, even when they improperly considered a
person's age, if they demonstrated that they would have made the same
decision or taken the same action for additional reasons unrelated to
age. The Court in the Gross case eliminated this so-called ``same
decision'' or ``same action'' defense. For this reason, since the Gross
decision issued, the federal courts have repeatedly ruled in favor of
age discrimination plaintiffs and against defendants.
Second, the bill as proposed will enable age discrimination and
other victims to prove a violation if an impermissible factor ``was a
motivating factor for the practice complained of, even if other factors
also motivated that practice.'' It will also restore the ``same
action'' defense and may render the ``motivating factor'' standard
nearly irrelevant. The proposed bill would deprive discrimination
victims of any meaningful remedy in ``same action'' cases. Their
lawyers may receive payment for fees ``demonstrated to be directly
attributable only to the pursuit of'' a ``motivating factor'' claim.
But the alleged victim will get nothing--no job, no money, no
promotion. Mr. Gross, for example, will receive nothing if he proves
age motivated his employer to demote him and his employer establishes
its same action defense. His lawyer, though, will receive some money.
As a result, if enacted in its current form, the bill may enhance
protections for lawyers, but do nothing for individuals.
Third, the bill is overly broad, vague, and ambiguous. It purports
to apply to ``any Federal law forbidding employment discrimination,''
and several other laws, but the bill does not identify which laws the
bill will amend. As a result, discrimination victims, unions,
employers, and others will unnecessarily spend years or decades, and
untold amounts of money, fighting in court over whether the bill
changes particular laws. This will have no positive consequences for
anyone. Congress can fix this vagueness problem rather easily by
amending the bill to apply solely to the Age Discrimination in
Employment Act--the only statute at issue in the Gross case--or at a
minimum listing the laws that Congress intends it to apply.

II. Background
A. Age Discrimination in Employment Act of 1967
Congress enacted the Civil Rights Act of 1964 to make unlawful race
and other forms of discrimination in employment and other areas. Title
VII of that Act prohibits employment discrimination based on race,
color, religion, sex and national origin.\1\ Title VII also prohibits
discrimination against any individual who has opposed unlawful
discrimination or made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or Title VII hearing.
Title VII also created the EEOC. EEOC enforcement authority over
Title VII is plenary, with the exception of litigation against public
employers. EEOC also enforces several other federal employment
discrimination laws, including the employment provisions of Americans
with Disabilities Act, the Equal Pay Act, and the Age Discrimination in
Employment Act (``ADEA'').
During the debate that led to Title VII's enactment, Congress
considered whether or not to include age as a protected class under
Title VII. Congress determined that it did not have sufficient
information about age discrimination to legislate on the issue.\2\ So,
Congress directed the Secretary of Labor to study the issue and to
report to Congress.\3\
Then-Secretary of Labor W. Willard Wirtz studied age discrimination
in employment, and on June 30, 1965, he issued his report to the
Congress. The report became known as the ``Wirtz Report.'' \4\ The
Wirtz Report found that little age discrimination arose from dislike or
intolerance of older people, but that arbitrary age discrimination was
then occurring in the United States. Secretary Wirtz concluded that
there was substantial evidence of arbitrary age discrimination, which
he defined as ``assumptions about the effect of age on [an employee's]
ability to do a job when there is in fact no basis for these
assumptions,'' particularly in the hiring context.\5\
Secretary Wirtz suggested that Congress deal with the problem of
arbitrary age discrimination by enacting a bill called ``The Age
Discrimination in Employment Act of 1967.'' President Lyndon Johnson
and majorities of both Houses of Congress agreed, and President Johnson
signed the bill into law at the end of 1967.
The ADEA prohibits employment discrimination based on age.\6\
Specifically, the ADEA makes it unlawful for employers, unions, and
others to:
(1) fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age;
(2) limit, segregate, or classify his employees in any way which
would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee,
because of such individual's age; or
(3) reduce the wage rate of any employee in order to comply with
the ADEA.\7\
The ADEA also contains protections against retaliation. The ADEA
has never had any mixed motive provision.
B. The Mixed Motive Doctrine
There are two general ways to prove individual Title VII claims.
The Supreme Court established the first in 1973 when it decided
McDonnell Douglas Corporation v. Green.\8\ In that case, an African-
American employee of a manufacturing company alleged that his discharge
and his employer's general hiring practices were racially motivated and
violated Title VII. The Supreme Court in McDonnell Douglas clarified
the proof structure that applies to a private, non-class action Title
VII cases. The Court explained that a plaintiff in a Title VII case
must first establish a ``prima facie'' case of discrimination by
proving that:
(i) the plaintiff is a member of a protected class;
(ii) the plaintiff applied and was qualified for a job for which
the employer was seeking applicants;
(iii) despite the plaintiff's qualifications, the employer rejected
the plaintiff; and
(iv) after the employer rejected the plaintiff, the position
remained open and the employer continued to seek applicants from
persons of the plaintiff's qualifications.\9\
If the plaintiff establishes a prima facie case of discrimination,
the burden shifts to the defendant to articulate ``some legitimate,
nondiscriminatory reason for the employee's rejection.'' \10\ The
plaintiff then must be ``afforded a fair opportunity to show that [the
employer's] stated reason for [plaintiff's] rejection was in fact
pretext.'' \11\
In 1989, the Supreme Court established another way for a Title VII
plaintiff to prove a Title VII violation. In Price Waterhouse v.
Hopkins, the Court considered the case of Ann Hopkins.\12\ Ms. Hopkins
was a female senior manager at an accounting firm. She alleged that the
firm denied her a promotion because of her sex. Ms. Hopkins was very
accomplished and competent. The Company cited her lack of interpersonal
skills and abrasiveness as the reasons for its decision not to promote
her.\13\
The Supreme Court in Price Waterhouse explained that a plaintiff
may prove a Title VII violation when a challenged decision is the
product of both permissible and impermissible considerations. When a
Title VII plaintiff proves that an illegitimate factor such as race or
sex plays a motivating or substantial part in the employer's decision,
the Court decided, the burden of persuasion shifts to the defendant to
show by a preponderance of evidence that it would have made the same
decision even in the absence of the illegitimate factor.\14\ The Court
also determined that to shift the burden of persuasion to the employer,
the employee must present ``direct evidence that an illegitimate
criterion was a substantial factor in the [employment] decision.'' \15\
The ``same decision'' defense created by Price Waterhouse was a
complete defense to liability. The Court explained:
[W]hen a plaintiff in a Title VII case proves that her gender
played a motivating part in an employment decision, the defendant may
avoid a finding of liability only by proving by a preponderance of the
evidence that it would have made the same decision even if it had not
taken the plaintiff's gender into account.\16\
Two years after the Court decided Price Waterhouse, Congress
enacted the Civil Rights Act of 1991. As part of the 1991 Act
amendments, Congress codified the mixed motive concept first described
by Price Waterhouse. Congress added the following to Title VII:
Except as otherwise provided in this subchapter, an unlawful
employment practice is established when the complaining party
demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other
factors also motivated the practice.\17\
The Civil Rights Act of 1991 modified the Price Waterhouse ``same
action'' defense slightly, as follows:
On a claim in which an individual proves a violation under section
2000e-2(m) of this title and a respondent demonstrates that the
respondent would have taken the same action in the absence of the
impermissible motivating factor, the court--
(i) may grant declaratory relief, injunctive relief (except as
provided in clause (ii)), and attorney's fees and costs demonstrated to
be directly attributable only to the pursuit of a claim under section
2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any
admission, reinstatement, hiring, promotion, or payment, described in
subparagraph (A).\18\
The Civil Rights Act of 1991 also amended the ADEA.\19\ It did not
add any ``motivating factor'' claim or ``same action'' defense to the
ADEA, nor has Congress ever done so.
Nine years later, in 2000, the Supreme Court decided Reeves v.
Sanderson Plumbing Products, Inc. and applied the McDonnell Douglas
burden shifting framework to the ADEA.\20\ In Reeves, a discharged
employee alleged that his employer unlawfully fired him because of his
age. The Court recognized that ``Courts of Appeals * * * have employed
some variant of the framework articulated in McDonnell Douglas to
analyze ADEA claims that are based principally on circumstantial
evidence.'' \21\ The Court assumed that the McDonnell Douglas framework
applies to ADEA claims \22\ and addressed ``whether a defendant is
entitled to judgment as a matter of law when the plaintiff's case
consists exclusively of a prima facie case of discrimination and
sufficient evidence for the trier of fact to disbelieve the defendant's
legitimate, nondiscriminatory explanation for its action.'' \23\ The
Court concluded that the employee presented sufficient evidence to show
that the defendant violated the ADEA.\24\
C. Gross v. FBL Financial Services, Inc.
Jack Gross sued his employer, FBL Financial Group, Inc. for alleged
ADEA violations. Mr. Gross alleged that his employer violated the ADEA
when it demoted him in January 2003 because of his age.
Mr. Gross began his employment with the Company in 1971, and he
received several promotions over the years. By 2003, he held the
position of claims administration director. In that year, when he was
54 years old, the Company reassigned Mr. Gross to the position of
claims project coordinator. At that same time, FBL transferred many of
his job responsibilities to a newly created position--claims
administration manager. The Company gave that position to Lisa
Kneeskern, a former subordinate of Mr. Gross. Ms. Kneeskern was also
younger than Mr. Gross. She was then in her early forties. Mr. Gross
and Ms. Kneeskern received the same pay, but Mr. Gross considered the
reassignment a demotion because FBL reallocated his former job
responsibilities to Ms. Kneeskern.
Mr. Gross sued FBL in 2004. Before the case went to the trial,
counsel for both sides asked the trial judge to instruct the jury about
the burden of proof. FBL's lawyer requested that the judge tell the
jury the following:
Your verdict must be for Plaintiff if both of the following
elements have been proven by the preponderance of the evidence:
(1) Defendant demoted Plaintiff to claims project coordinator
effective January 1, 2003; and
(2) Plaintiff's age was the determining factor in Defendant's
decision.
If either of the above elements has not been proven by the
preponderance of the evidence, your verdict must be for Defendant.
``Age was a determining factor'' only if Defendant would not have
made the employment decision concerning plaintiff but for his age; it
does not require that age was the only reason for the decision made by
Defendant.\25\
Mr. Gross' attorney asked the trial judge to tell the jury the
following:
Your verdict must be for plaintiff on plaintiff's age
discrimination claim if all the following elements have been proved by
the preponderance of the evidence:
First, defendant demoted plaintiff; and
Second, plaintiff's age was a motivating factor in defendant's
decision to demote plaintiff.
However, your verdict must be for defendant if any of the above
elements has not been proved by a preponderance of the evidence, or if
it has been proved by the preponderance of the evidence that defendant
would have demoted plaintiff regardless of his age. You may find age
was a motivating factor if you find defendant's stated reasons for its
decision are not the real reasons, but are a pretext to hide age
discrimination.\26\
The trial judge generally agreed with Mr. Gross' lawyer and told
the jury the following:
Your verdict must be for the plaintiff if all the following
elements have been proved by a preponderance of the evidence:
First, defendant demoted plaintiff to claims project coordinator
effective January 1, 2003; and
Second, plaintiff's age was a motivating factor in defendant's
decision to demote plaintiff.
However, your verdict must be for the defendant if any of the above
elements has not been proved by the preponderance of the evidence, or
if it has been proved by the preponderance of the evidence that
defendant would have demoted plaintiff regardless of his age. You may
find age was a motivating factor if you find defendant's stated reasons
for its decision are not the real reasons, but are a pretext to hide
age discrimination.\27\
The jury found in favor of Mr. Gross and awarded him $46,945. After
the trial, FBL asked the trial judge to overturn the jury's verdict.
The court declined.\28\ The court applied a McDonnell Douglas analysis
and upheld the jury's verdict. The court found that Mr. Gross had
established a prima facie case of age discrimination, that FBL had
presented a legitimate, nondiscriminatory reason for the change in Mr.
Gross' responsibilities, and that the jury nonetheless could have
reasonably found that FBL's stated reason for the demotion was not
credible.
FBL appealed to the United States Court of Appeals for the Eighth
Circuit. The Eighth Circuit reversed and remanded for a new trial
because it found that a mixed motive jury instruction was not proper.
The court applied Price Waterhouse and held that a mixed motive jury
instruction was improper because Mr. Gross did not present ``direct
evidence'' of age discrimination.\29\ According to the court, the trial
judge should have instructed the jury consistent with the McDonnell
Douglas framework.\30\
The Supreme Court granted certiorari and vacated and remanded the
Eighth Circuit's opinion. The Court decided that a plaintiff who brings
an intentional age discrimination claim must prove that age was the
``but-for'' cause of the challenged adverse employment action.\31\ The
Court determined that the burden of persuasion does not shift to the
employer to show that it would have taken the action regardless of age,
even when a plaintiff has produced some evidence that age was one
motivating factor in that decision.\32\
The Court identified the issue as ``whether the burden of
persuasion ever shifts to the party defending an alleged mixed-motives
discrimination claim brought under the ADEA.'' \33\ The Court held that
the burden does not shift. Title VII explicitly sets forth the
motivating factor and same action burdens, but, the Court explained,
the ADEA says nothing about any motivating factor or same action
defense. The Court observed that when Congress amended Title VII in
1991 and added the motivating factor and same action provisions, it did
not add those provisions to the ADEA, even though it made other changes
to the ADEA.\34\
The Court observed that the ADEA makes it `` `unlawful for an
employer * * * to fail or refuse to hire or to discharge any individual
or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because
of such individual's age.' '' \35\ The Court then applied what it said
was the ordinary meaning of ``because of,'' and reasoned that the
ADEA's ``because of'' standard requires a plaintiff who alleges
intentional age discrimination to ``prove that age was the `but-for'
cause of the employer's adverse action.'' \36\
The Court rejected the contention that Price Waterhouse's
``motivating factor,'' ``same decision,'' and ``direct evidence''
standards should govern ADEA cases. The Court observed that Price
Waterhouse's burden-shifting framework is ``difficult to apply'' and
that the ``problems'' associated with Price Waterhouse's ``application
have eliminated any perceivable benefit to extending its framework to
ADEA claims.'' \37\

III. The Protecting Older Workers Against Discrimination Act
If enacted in its current form, the Protecting Older Workers
Against Discrimination Act will do nothing to protect workers from age
discrimination, other forms of discrimination, retaliation, or any
other unlawful conduct. Individual employees who prove an unlawful
motive will win nothing when the defendant establishes the same action
defense. They will ``win'' a moral victory, perhaps, but nothing else.
The bill may enable some lawyers to earn more money, but who does this
benefit? The answer is: lawyers, not discrimination victims, not
unions, and not employers. Furthermore, the bill will hurt victims,
unions, employers, and others because it will force these individuals
and entities to spend years or decades fighting in court about whether
the bill applies to what the bill vaguely describes as various laws
that ``forbid[] employment discrimination.'' The bill will thus help
empty the bank accounts of plaintiffs and defendants alike, and it will
unnecessarily consume the limited resources of the federal courts.
Section 2--Findings and Purpose. The bill asserts that the Gross
decision ``has narrowed the scope'' of the ADEA's protection and that
Gross ``rel[ied] on misconceptions about the [ADEA].'' \38\ These
assertions are incorrect. Nothing in the text or legislative history of
the ADEA authorizes mixed-motive discrimination claims.\39\ The ADEA
prohibits employment discrimination ``because of'' an individual's
age.\40\ And, because Gross actually strips away the same action
defense, Gross deprives entities that engage in age discrimination from
a defense previously thought available.\41\
The bill also asserts that unless Congress takes ``action,'' age
discrimination victims will ``find it unduly difficult to prove their
claims and victims of other types of discrimination may find their
rights and remedies uncertain and unpredictable.'' \42\ This assertion
is also incorrect. The ``but for'' causation standard does not render
discrimination victims helpless, nor does that standard mean that
victims will lose their cases.
For example, in the Gross case itself, the trial judge applied the
McDonnell Douglas standards after the trial, overruled the defendant's
request the court overrule the jury, and sustained the verdict.
Moreover, since the Gross decision issued, the federal courts have
repeatedly ruled in favor of age discrimination plaintiffs.\43\
Consider:
In Hrisinko v. New York City Department of Education,
decided two months ago, the United States Court of Appeals for the
Second Circuit reversed the district court's grant of summary judgment
and ruled in favor of an age discrimination plaintiff. The court noted
that the plaintiff ``faced changes in the terms and conditions of her
employment that rise to the level of an adverse employment action,''
and therefore she ``has set forth a prima facie case of age
discrimination [under the McDonnell Douglas framework].'' \44\
In Mora v. Jackson Memorial Foundation, Inc., also decided
this year, the United States Court of Appeals for the Eleventh Circuit
observed that Gross established that ``no `same decision' affirmative
defense can exist.'' The court reversed the district court's grant of
summary judgment in favor of the employer and instead ruled in the
plaintiff's favor.\45\ The court concluded that ``a reasonable juror
could accept that [the employer] made the discriminatory-sounding
remarks and that the remarks are sufficient evidence of a
discriminatory motive which was the `but for' cause of [the
plaintiff's] dismissal.'' \46\
Last year, the United States Court of Appeals for the
First Circuit similarly reversed a district court's pro-employer
summary judgment decision and found in favor of the plaintiff. In Velez
v. Thermo King de Puerto Rico, Inc., the court applied the McDonnell
Douglas framework,\47\ and noted that that ``several aspects of the
evidence * * * are more than sufficient to support a factfinder's
conclusion that Thermo King was motivated by age-based discrimination *
* *. These include Thermo King's shifting explanations for its
termination for Velez, the ambiguity of Thermo King's company policy *
* *, and, most importantly, the fact that in response to arguably
similar conduct by younger employees, Thermo King took no disciplinary
action.'' \48\
In Baker v. Silver Oak Senior Living Management Company,
the United States Court of Appeals for the Eighth Circuit reversed the
district court's pro-employer grant of summary judgment, cited Gross
decision, and ruled for the plaintiff. The court concluded that ``[the
plaintiff] * * * presented a submissible case of age discrimination for
determination by a jury'' when she introduced evidence that senior
executives stated that they had a ``preference for younger workers.''
\49\
Several other courts, including the Third, Fifth, Sixth, Seventh,
Ninth, and Tenth Circuits, relied upon Gross to rule in favor of
plaintiffs.\50\
Section 3--Standard of Proof. The Protecting Older Workers Against
Discrimination Act would amend the ADEA to make an employment action
unlawful if a plaintiff proves that an improper factor such as age
motivated the employment action, even if other, legitimate factors were
also motivators.'' \51\ But if a defendant can show that it would have
taken the same action despite the improper factor, the plaintiff loses
his or her right to damages, reinstatement, hiring, promotion, or
payment.\52\ In the end, only the lawyers win; the Protecting Older
Workers Against Discrimination Act would allow courts to award certain
attorney's fees and costs and would do nothing to enhance the ADEA's
protections of victims of discrimination.\53\
Title VII cases provide sobering examples of how the mixed motive
framework turns winning plaintiffs into losers. Like the bill, Title
VII's mixed motive framework contains a same action defense and
prevents victims from receiving a job, money, or anything else, other
than money for their lawyers.\54\ The types of injunctive relief that
plaintiffs want, such as a job or back pay, are expressly excluded.\55\
And, in fact, since the 1991 amendments to Title VII, mixed motive
plaintiffs have received nominal injunctive relief, or nothing.\56\
Some plaintiffs ``won'' only a hollow declaration that he or she
prevailed.\57\ To add insult to injury, former employees are unlikely
to receive any form of meaningful relief at all, as courts have found
that even injunctive relief is not warranted when the plaintiff is a
former employee.\58\ And, while some courts have suggested that
injunctive relief may be appropriate when there is widespread
discrimination or an employer maintains a discriminatory policy, the
courts may issue only an order to comply with the law--something the
law already requires even if no such order issues.\59\
Section 3--Application of Amendment. The Protecting Older Workers
Against Discrimination Act does not identify the laws to which it
applies. Section 3 of the bill simply states that the mixed motive
proof structure would apply to ``any Federal law forbidding employment
discrimination.'' \60\ This language is hopelessly overbroad, vague and
ambiguous, and would open up a Pandora's Box of litigation dedicated to
deciphering this section.
For example, will the bill cover the Fair Labor Standards Act,
which prescribes standards for the basic minimum wage and overtime pay?
Or, will it cover only Section 15 of the Fair Labor Standards Act
because that is the only Section of the Act that uses the word
``discriminate?'' \61\
Consider also the Family and Medical Leave Act. That law, known as
the ``FMLA,'' provides eligible employees with up to twelve weeks of
unpaid leave each year for several reasons, including for the birth and
care of a newborn child of the employee; placement with the employee of
a son or daughter for adoption or foster care; to care for a spouse,
son, daughter, or parent with a serious health condition; to take
medical leave when the employee is unable to work because of a serious
health condition; or for qualifying exigencies that occur because the
employee's spouse, son, daughter, or parent is on active duty or is
called to active duty status as a member of the National Guard or
Reserves in support of a contingency operation.\62\
The FMLA's terms are gender neutral, and the Act protects both men
as well as women.\63\ Is the FMLA a ``Federal law forbidding employment
discrimination'' under the Protecting Older Workers Against
Discrimination Act? If the bill is enacted in its current form, the
public will have to wait years or decades until the issue trickles up
to the Supreme Court to settle the issue. In the meantime, litigants
and courts will waste time, money, and resources litigating this issue,
with no benefit for anyone.
The threat of decades of litigation about these issues is not
merely hypothetical. Note in this regard that it took 38 years of
litigation before the Supreme Court finally decided, in 2005, that the
ADEA permits claims for unintentional age discrimination in certain
circumstances.\64\ The Protecting Older Workers Against Discrimination
Act, as currently proposed, will create litigation, confusion, and
needless wasted resources and money because it does not precisely
identify the laws it purports to amend. No victim of employment
discrimination will benefit from any of this, and many will be hurt as
will unions and employers. At a minimum, the bill should identify
specifically the laws that it amends. The recently-enacted Lilly
Ledbetter Fair Pay Act of 2009 specifically identified the laws it
amended, and Congress can do the same here.\65\

IV. Conclusion
I respectfully suggest that Congress re-examine the bill and its
impact on Mr. Gross and other litigants. The bill will not restore any
pre-Gross protections because Gross did not narrow the ADEA's
protections. In fact, Mr. Gross already lost under those standards: the
U.S. Court of Appeals for the Eighth Circuit applied the Price
Waterhouse standard and overturned the jury's verdict in Mr. Gross'
favor. Mr. Gross and many others will likewise gain nothing if the bill
passes in its current form. The bill may provide greater income for
some lawyers, but it will do so at a terrible cost. Discrimination
victims, unions, employers, and others will become embroiled in years
of unnecessary litigation about the bill's meaning. None of this is
necessary, and I request that the Congress resist the urge to enact the
bill as proposed.

ENDNOTES

\1\ Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. Sec.
2000e to 2000e-17.
\2\ See 110 CONG. REC. 2597 (1964) (remarks of Representative
Celler (``[Congress] do[es] not have sufficient information, concerning
discrimination based on age, to act intelligently. I believe * * * it
would be rather brash to rush into this situation without having
sufficient information to legislate intelligently upon this very
vexatious and difficult problem.'').
\3\ See H.R. Rep. No. 88-914, pt.1, at 15 (1963) (``Sec. 718. The
Secretary of Labor shall make a full and complete study of the factors
which might tend to result in discrimination in employment because of
age and of the consequences of such discrimination on the economy and
individuals affected.'').
\4\ Secretary of Labor, The Older American Worker: Age
Discrimination in Employment 1 (1965).
\5\ Id. at 2, 5 (emphasis in original). See also Smith v. City of
Jackson, 544 U.S. 228, 254-55 (2005) (discussing Wirtz Report).
\6\ Age Discrimination in Employment Act of 1967, 29 U.S.C.
Sec. Sec. 621 to 634.
\7\ Id. at Sec. 623(a).
\8\ 411 U.S. 792 (1973).
\9\ Id. at 802.
\10\ Id.
\11\ Id. at 804.
\12\ 490 U.S. 228 (1989).
\13\ Id. at 233-34.
\14\ Id. at 258.
\15\ Id. at 276 (O'Connor, J., concurring).
\16\ Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).
\17\ 42 U.S.C. Sec. 2000e-2(m).
\18\ 42 U.S.C. Sec. 2000e-5(g)(2)(A).
\19\ See, e.g., Pub.L. 102-166, Title I, Sec. 115, Nov. 21, 1991,
105 Stat. 1079 (eliminating tolling period).
\20\ 530 U.S. 133 (2000).
\21\ Id. at 141.
\22\ Id. at 142.
\23\ Id. at 137.
\24\ Id. at 146-48.
\25\ Eighth Circuit Model Jury Instruction 5.11A (applying to
determining factor cases); Gross v. FBL Financial Services, Inc. No.
4:04-CV-60209, 2006 WL 6151670 (S.D. Iowa June 23, 2006), Def. Proposed
Jury Instr. No. 10, filed Oct. 30, 2005.
\26\ Eighth Circuit Model Jury Instruction 5.11B (applying to
motivating factor/same decision cases); Gross, 2006 WL 6151670, Pl.
Proposed Jury Inst. p. 16, filed Oct. 25, 2005.
\27\ Id. Final Jury Instr. No. 11.
\28\ Id. at *1-14.
\29\ Id. at 359-60.
\30\ Gross v. FBL Financial Services, Inc., 526 F.3d 356 (2008).
\31\ Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).
\32\ Gross, 129 S.Ct. at 2352.
\33\ Gross, 129 S.Ct. at 2348.
\34\ Id. at 2348-49.
\35\ Id. at 2350-51 (quotations omitted and emphasis added).
\36\ Id.
\37\ Id. at 2352 (citing Tyler v. Bethlehem Steel Corp., 958 F.2d
1176, 1179 (2d Cir. 1992) (referring to ``the murky water of shifting
burdens in discrimination cases''); Visser v. Packer Engineering
Associates, Inc., 924 F.2d 655, 661 (7th Cir. 1991) (en banc) (Flaum,
J., dissenting) (``The difficulty judges have in formulating [burden-
shifting] instructions and jurors have in applying them can be seen in
the fact that jury verdicts in ADEA cases are supplanted by judgments
notwithstanding the verdict or reversed on appeal more frequently than
jury verdicts generally''); and Continental T. V., Inc. v. GTE Sylvania
Inc., 433 U.S. 36, 47, (1977) (reevaluating precedent that was subject
to criticism and ``continuing controversy and confusion''); and Payne
v. Tennessee, 501 U.S. 808, 839-844 (1991) (Souter, J., concurring)).
\38\ Protecting Older Workers Against Discrimination Act, H.R.
3721, 111th Cong. Sec. 2(a)(4)-(5) (2009).
\39\ 29 U.S.C. Sec. 623; Gross, 129 S. Ct. at 2350-51; Secretary
of Labor, The Older American Worker: Age Discrimination in Employment
21-22 (1965).
\40\ 29 U.S.C. Sec. 623(a)(1)-(2), (b), (c)(1)-(2).
\41\ See Gross, 129 S. Ct. at 2350-51 & n.5.
\42\ Protecting Older Workers Against Discrimination Act, S. 1756,
111th Cong. Sec. 2(a)(6) (2009).
\43\ Federal courts of appeal have also applied Gross in favor of
plaintiffs alleging discrimination under other employment statutes.
See, e.g., Serafinn v. Local 722, Int'l Bhd. Of Teamsters, 597 F.3d
908, 914-15 (7th Cir. 2010) (Labor Management Reporting and Disclosure
Act; citing Gross to reject defendant's challenge to jury
instructions); Fleming v. Yuma Reg'l Med. Ctr., 587 F.3d 938, 943-44
(9th Cir. 2009) (Rehabilitation Act; citing Gross to conclude that
Sec. 504 covers independent contractors).
\44\ No. 08-6071, 2010 WL 826879, at *2-*3 (2d Cir. Mar. 11, 2010).
\45\ 597 F.3d 1201, 1202 (11th Cir. 2010).
\46\ Id. at 1204.
\47\ 585 F.3d 441, 447 n.2 (1st Cir. 2009).
\48\ Id. at 449.
\49\ 581 F.3d 684, 688 (8th Cir. 2009).
\50\ Serafinn v. Local 722, Int'l Bhd. Of Teamsters, 597 F.3d 908
(7th Cir. 2010); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d
Cir. 2010); Bolmer v. Oliveria , 594 F.3d 134 (2d Cir. 2010); Fleming
v. Yuma Reg'l Med. Ctr., 587 F.3d 938 (9th Cir. 2009); Leibowitz v.
Cornell Uni., 584 F.3d 487 (2d Cir. 2009); EEOC v. TIN, Inc., 349 F.
App'x 190 (9th Cir. Oct. 20, 2009); Brown v. J. Kaz, Inc., 581 F.3d 175
(3d Cir. 2009); Thompson v. Weyerhaeuser Co., 582 F.3d 1125 (10th Cir.
2009); Hunter v. Valley View Local Schs., 579 F.3d 688 (6th Cir. 2009).
The following courts cited Gross and found in favor of the defendant:
Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010);
Reeder v. Wasatch County Sch. Dist., No. 08-4048, 2009 WL 5031335 (10th
Cir. Dec. 23, 2009); Senske v. Sybase, Inc., 588 F.3d 501 (7th Cir.
2009); Phillps v. Centrix Inc., 354 F. App'x 527 (2d Cir. Dec. 1,
2009); Spencer v. UPS, 354 F. App'x 554 (2d Cir. Dec. 1, 2009); Kelly
v. Moser, Patterson & Sheridan, LLP, 348 F. App'x 746 (3d Cir. Oct. 9,
2009); Milby v. Greater Phila. Health Action, 339 F. App'x 190 (3d Cir.
July 27, 2009).
\51\ Protecting Older Workers Against Discrimination Act, H.R.
3721, 111th Cong. Sec. 3 (2009).
\52\ Id. Sec. (3); cf. id. Sec. 2(b).
\53\ Id. Sec. (3); cf. id. Sec. 2(a).
\54\ 42 U.S.C. Sec. 2000e-5(g)(2)(B).
\55\ Id. Sec. 2000e-5(g)(2)(B)(ii).
\56\ See, e.g., Coe v. N. Pipe Products, 589 F. Supp. 2d 1055,
1097-98 (N.D. Iowa 2008) (``Thus, although the trier of fact may well
find liability on a `mixed motives' claim, the plaintiff may ultimately
recover nothing if the trier of fact also finds for the defense on the
`same decision' defense. When faced with the real possibility of
passing through the gauntlet of an employment discrimination trial,
this court doubts that many plaintiffs would be willing to run the risk
of prevailing on liability, but still receiving no monetary
compensation for their efforts. This court also doubts that many
plaintiffs would be happy to find that insult is added to injury, when
they will receive nothing, but their lawyers will be compensated by the
employer.'').
\57\ See, e.g., Thibeaux v. Principi, No. 04-1609, 2008 WL 2517170,
at *5 (W.D. La. June 20, 2008) (finding injunctive relief inappropriate
because employee no longer reported to supervisor about whom she
complained and did not allege any ongoing discrimination); Crosby v.
Mobile County, No. 04-0144, 2007 WL 4125885, at *3 (S.D. Ala. Nov. 14,
2007) (``declaratory and injunctive relief is granted only to the
extent that the court will declare that [defendant] engaged in
discriminatory conduct * * *''); Templet v. Hard Rock Constr. Co., No.
02-0929, 2003 WL 22717768, at *1 (E.D. La. Nov. 17, 2003) (finding that
plaintiff is entitled to a judgment declaring that defendant violated
law but finding no injunctive relief appropriate).
\58\ See, e.g., Cooper v. Ambassador Personnel, Inc., 570 F. Supp.
2d 1355, 1359-60 (M.D. Ala. 2008) (holding that no injunctive relief is
appropriate because plaintiff is no longer employed at the company).
\59\ See id. at 1360 (stating that ``injunctive and declaratory
relief might be appropriate * * * where, for example, the company
engaged in widespread gender discrimination of the type challenged or
had an official policy for such or where the company continued to
engage in such gender discrimination'').
\60\ Protecting Older Workers Against Discrimination Act, H.R.
3721, 111th Cong. Sec. 3 (2009) (proposed to be codified at 29 U.S.C.
Sec. 623(g)(5)(B)).
\61\ 29 U.S.C. Sec. 215.
\62\ 29 U.S.C. Sec. 2612(a).
\63\ Nevada v. Hibbs, 538 U.S. 721, 737 (2003)(``By setting a
minimum standard of family leave for all eligible employees,
irrespective of gender, the FMLA attacks the formerly state-sanctioned
stereotype that only women are responsible for family caregiving,
thereby reducing employers' incentives to engage in discrimination by
basing hiring and promotion decisions on stereotypes'').
\64\ Smith v. City of Jackson, 544 U.S. 228 (2005).
\65\ Pub. L. No. 111-2, Sec. Sec. 3-5, 123 Stat. 5, 5-7 (2009).
______

Chairman Andrews. Thank you very much for your testimony.
We appreciate it.
Mr. Foreman, welcome.

STATEMENT OF MICHAEL FOREMAN, CLINICAL PROFESSOR AND DIRECTOR
OF THE CIVIL RIGHTS APPELLATE CLINIC, DICKINSON SCHOOL OF LAW,
PENN STATE UNIVERSITY

Mr. Foreman. Thank you, Chairman Andrews, Ranking Member
Price----
Chairman Andrews. Can you pull the microphone a bit closer
to you there and turn it on?
Mr. Foreman. Is that better?
Chairman Andrews. Thank you.
Mr. Foreman. Thank you for convening this very important
hearing.
I think as you mentioned in your opening statement, it
raises a very fundamental issue, I think, before Congress. And
I think that fundamental issue is, when Congress passes a
statute that says it is unlawful to do something because of
race, sex, national origin, in this case age, how much
discrimination is the Congress willing to allow? How much
discrimination does that type of statute tolerate?
And I think Congress sought to answer to that question. I
know we thought you answered that question. And the answer was
pretty straightforward: none. These laws don't tolerate some
level of allowable discrimination. But, unfortunately, the
Gross decision changed all that. And the bill that you have
before you is a balanced response to Gross, it is a fair
response to Gross, and, indeed, it is a conservative response
to Gross. And I can talk more about why I believe that as we
move forward.
Now, my colleague indicates that it will do nothing to help
workers. And I think his comment was, it is a moral victory,
nothing more. I think you want to ask Mr. Gross about that.
Because, under the very standard this bill proposes, Mr. Gross
won. He would win again, under that standard, because the jury
found that age was a motivating factor and that the employer
could not prove that they would have taken the same action
anyhow; that it was, in fact, a violation of the law. And the
jury awarded him $46,000. I don't believe he views that as just
a moral victory. The law has teeth, it has meaning.
Now, what did the Gross decision really do? Number one, it
ignored interpretations of every circuit court of appeals that
had addressed this decision since Price Waterhouse was handed
down in 1989. It was a consistent view of all the courts that
there was a motivating factor causation standard within the
ADEA, but the Court ignored that. The Supreme Court ignored
that and said, no, the age law tolerates more discrimination
than Title VII tolerates unless you, Congress, make it very,
very, very clear that you are not going to tolerate any type of
discrimination like that.
So, number one, the question is: This is for Congress to
fix. And, in fact, Justice Thomas in his opinion says, ``This
is Congress's issue. If you want us to protect, then you need
to tell us explicitly.''
Two, it has caused havoc in the courts. One, it has called
into question the McDonnell Douglas standard that has been
applied for literally decades, in the age case. Courts are
struggling because of what the Supreme Court said. More
importantly, it has called into question what is the
appropriate standard of proof under a lot of other statutes,
not just the ADEA. The Seventh Circuit says it applies to the
ADA because their interpretation of Gross is, unless you,
Congress, provide these magic words, the mixed motive type of
analysis, then it is but for causation. And so, it applies to
any statute that is out there. And, in fact, employers are
arguing it applies to every statute that is out there that do
not have these words.
That is the reason I say that the bill is a measured
response. It reinstates the law to what it was prior to Gross
and makes it clear that when Congress says you shouldn't
consider something, hey, you should not consider something;
that is a violation of the law. It provides the employers with
the ability to say, if I would have done that anyhow, they can
limit their liability. So it is a measured response.
And it does not tolerate some level of discrimination.
Rather, it sends the message that I think you all sent since
1991 and before that, when we pass discrimination law, we are
not going to allow some level of discrimination or a little bit
of discrimination, that we are here to combat all
discrimination.
And I am prepared to answer any questions on the bill or
any follow-ups you may have. Thank you.
[The statement of Mr. Foreman follows:]

Prepared Statement of Prof. Michael Foreman, Director, Civil Rights
Appellate Clinic, Pennsylvania State University Dickinson School of Law

Chairman Andrews, Ranking Member Price and members of the
Subcommittee: Thank you for convening this hearing regarding the impact
of the Supreme Court's decision in Gross v. FBL Financial Services,
Inc.\1\ on employees' right to work free from discrimination based upon
age, and the legislative response to this surprising decision.
Unfortunately the Court's decision poses a very fundamental
question--what Congress really means when it says it is unlawful to
discriminate because of age? Stated alternatively, what is the
tolerable amount of discrimination Congress is willing to permit
against older workers? I, along with many others, believe that Congress
had already answered this question--none--but the Gross decision
requires Congress to be more explicit as to what amount of
discrimination it will allow.
HR 3721 is a fair, balanced, indeed conservative attempt to return
the law to where everyone, the courts included, thought it was. The
bill also attempts to stem the confusion created by the decision and
provides the explicit statement of congressional intent the Supreme
Court in Gross demands.
My name is Michael Foreman. I am the Director of the Civil Rights
Appellate Clinic at the Pennsylvania State University Dickinson School
of Law where I also teach an advanced employment discrimination course.
I have handled employment matters through all phases of their
processing from the administrative filing, at trial and through appeal
and have represented both employers and employees. It is from this
broad perspective that I provide my testimony.\2\ Much of my testimony
is taken from my more detailed analysis of the Gross decision which
will be appearing in in Volume 40, Issue 4, Summer 2010 of the
University of Memphis Law Review.
Gross undermined Congress's legislative intent and immediately
impacted older workers, relegating them to second-class status among
victims of discrimination. It has already been used to erode
protections seemingly established under other antidiscrimination laws.
The Gross majority made it explicit that it is up to Congress to
clarify its intent in extremely precise terms when it amends employment
discrimination statutes. Indeed the majority chastises Congress for not
being more specific as to its intent and appears to challenge Congress
to act.\3\
I. Gross v. FBL Financial Services: the decision
Gross v. FBL Financial Services involved a claim that FBL engaged
in ADEA-prohibited age discrimination. In the district court, a jury
found that Mr. Gross's age was a motivating factor in FBL's decision to
demote him.\4\ The district court instructed the jury to enter a
verdict for Gross if he proved by a preponderance of the evidence that
he was demoted and that his age was a motivating factor in the
demotion.\5\ The district court also explained to the jury that age was
a motivating factor if it played a part in the demotion and instructed
the jury to return a verdict for FBL if it proved that it would have
demoted Gross regardless of age.\6\
On appeal, the Eighth Circuit reversed and remanded, holding that
the district court's mixed-motive jury instruction was flawed because
the appropriate legal analysis was the standard established in Price
Waterhouse v. Hopkins,7 which shifts the burden of persuasion to the
employer only if the plaintiff presents ``direct evidence'' of age
discrimination.\8\ Gross petitioned for certiorari on this narrow issue
of whether direct evidence was required in age cases.\9\ In a
surprising 5-4 decision, the Supreme Court held that a mixed-motive
jury instruction is never proper under the ADEA because the ADEA's
prohibition against discrimination ``because of'' an individual's age
requires plaintiffs to prove that age was the ``but-for'' cause of the
employer's decision.\10\
The Supreme Court stated that a plaintiff bringing a disparate-
treatment claim pursuant to the ADEA must prove, by a preponderance of
the evidence, that age was the ``but-for'' cause of the challenged
employment action.\11\ According to the Court, the burden of persuasion
does not shift to the employer to show that it would have taken the
action regardless of age, even when a plaintiff has produced evidence
that age was one motivating factor in the decision.\12\
The majority believed the language of the ADEA is clear. In their
view, the plain meaning of the ADEA's requirement that an employer's
adverse action was ``because of'' age means that age was ``the reason''
the employer decided to act.\13\ In other words, the burden of
persuasion necessary to establish employer liability is the same in
mixed-motives cases as in any other ADEA disparate-treatment action:
the plaintiff must prove by a preponderance of the evidence, either
direct or circumstantial, that age was the ``but-for'' cause of the
challenged employer decision.\14\ The Court concluded that because it
held that ADEA plaintiffs retain the burden of persuasion to prove all
disparate-treatment claims, it did not have to address whether
plaintiffs must present direct evidence to obtain a burden-shifting
instruction.\15\

A. The Gross Majority Decided An Issue Not Presented To The
Court
Neither the parties to Gross nor the interested amici curiae were
given notice the Court would be considering whether a mixed-motive
instruction was available under the ADEA.\16\ The issue presented and
on which the Supreme Court granted certiorari was whether, under the
ADEA, a plaintiff is required to present ``direct evidence'' of age
discrimination to obtain a mixed-motive jury instruction.\17\ Parties
on both sides proceeded with the understanding that the Price
Waterhouse motivating-factor type of analysis was applicable to ADEA
claims until FBL filed its brief at the Supreme Court questioning the
utility of Price-Waterhouse.\18\ The majority, rather than determining
whether a Price-Waterhouse-type of mixed motive analysis applied,
determined that it must reach a much more fundamental issue--whether
any type of mixed-motive analysis applies to ADEA claims.\19\
At oral argument, the Office of the Solicitor General pleaded with
the Court not to take up an issue that was not briefed by the parties
or the United States.\20\ The five-member Gross majority decision
prompted the four justices in dissent to note that the majority was
unconcerned that the ``question it chooses to answer has not been
briefed by the parties or interested amici curiae,'' and that the
majority's ``failure to consider the views of the United States, which
represents the agency charged with administering the ADEA [was]
especially irresponsible.''21 Ultimately, the Court avoided the issue
on which it granted certiorari and held that the ADEA does not
authorize a mixed-motive discrimination claim.

B. The Gross Majority Ignored Precedent That Had
Interpreted Similar Language To Allow Mixed-Motive
Liability
The Gross decision stands in stark contrast to the Court's
precedent and a body of uniform circuit court decisions. In Price
Waterhouse, the Court examined Title VII and determined that the words
``because of'' prohibit adverse employment actions motivated, in whole
or in part, by prohibited considerations.\22\ Considering the
relationship between Title VII and the ADEA, circuit courts
consistently adopted the Price Waterhouse standard in the context of
ADEA claims for nearly twenty years without issue.\23\
For example, in Febres v. Challenger Caribbean Corp., the United
States Court of Appeals for the First Circuit applied the Price
Waterhouse standard to an ADEA claim.\24\ The First Circuit explained
that in a mixed-motive case the burden of persuasion does not shift
merely because the plaintiff introduces sufficient direct evidence to
permit a finding that a discriminatory motive was at work.\25\ The
burden shifts only if the direct evidence actually persuades the jury
that a discriminatory motive was at work.\26\ In sum, ``the burden of
persuasion does not shift unless and until the jury accepts the 'direct
evidence' adduced by the plaintiff and draws the inference that the
employer used an impermissible criterion in reaching the disputed
employment decision.''27 In Gross, however, the Court determined that
``because of'' means something different for victims of age
discrimination.\28\
The relevant language of Title VII and the ADEA use identical
``because of'' terminology, and ``[the Court has] long recognized that
[its] interpretations of Title VII's language apply 'with equal force
in the context of age discrimination, for the substantive provisions of
the ADEA were derived in haec verba from Title VII.' '' \29\ The
majority appeared unconcerned by Congress' use of identical language
and instead focused on what Congress did not explicitly do when it
enacted the Civil Rights Act of 1991.\30\ The ADEA's text does not
specifically reference a mixed motive type of claim as Title VII does
as amended in 1991.\31\ The majority found it significant that Congress
did not add this specific language to the ADEA when it amended Title
VII, even though it contemporaneously amended the ADEA in several
ways.\32\ However, the Gross majority never explained why identical
``because of'' language in the two statutes should have different
meanings.
Rather than justifying its departure from Price Waterhouse, the
majority merely characterized its holding as a decision not to extend
Price Waterhouse to the ADEA.\33\ The Court reasoned that it would not
ignore Congress' decision to amend Title VII's relevant provisions but
not to make similar changes to the ADEA.\34\ According to the Court,
when Congress amends one statutory provision but not another, it is
presumed to have acted intentionally.\35\ Again, the Court was
unconcerned that its interpretation was in direct conflict with the
understanding that the Courts of Appeals have unanimously accepted
since 1991.\36\

C. Gross Undermines Congressional Intent To Eliminate
Discrimination In The Workplace
The increased burden Gross imposes upon older workers contravenes
the clear intent of Congress to prohibit age discrimination in the
workplace. Just a few years after Price Waterhouse, Congress passed the
1991 amendments to Title VII to codify the Court's ``motivating
factor'' test and to clarify that a same-decision defense went only to
damages--not liability.\37\ This amendment reflected Congress'
continued commitment to eradicating discrimination in employment.\38\
Rather than recognizing this express congressional approval of mixed-
motive liability, the Gross majority misconstrues the amendment by
inferring congressional intent to exclude mixed-motive claims from
employment discrimination statutes it did not simultaneously amend.\39\
Such an inference appears misplaced when the Court is interpreting
amendments designed to counteract ``Supreme Court decisions that
sharply cut back on the scope and effectiveness of [civil rights]
laws.''40
The Courts of Appeals had universally recognized Congress' express
approval of the motivating factor test, and, therefore, consistently
applied that test in ADEA claims for nearly twenty years.\41\ But now,
having determined that Congress did not intend these consistent
interpretations, the five Justices have sent a clear message that if
Congress wants to eliminate the consideration of age in employment
decisions, it must explicitly say so.

II. The fundamental lessons of the Gross decision
A. If Congress Wants To Provide Protections Against
Discrimination, Congress Must Be Clear--Very Very
Clear
The prohibitions against age discrimination in the workplace have
never been viewed as providing less protection for older workers, or
stated alternatively, as allowing more discrimination against older
workers than the protections under Title VII of the Civil Rights Act of
1964. Yet this is effectively Gross's outcome. The majority's decision
has made it significantly more difficult to bring an age discrimination
claim and requires employees who are victims of age discrimination to
meet a higher burden of proof than someone alleging discrimination
based upon race, color, religion, sex, or national origin under Title
VII.
In Gross the Court concluded that even though age was a
``motivating'' factor for the adverse employment action, as the jury
determined in Mr. Gross's case, this is not enough to prove a violation
of the ADEA.\42\ Congress has never said or implied that age
discrimination is any less pernicious than discrimination against Title
VII-protected groups, or that age discrimination should be harder to
prove. Congress has been unequivocal about its desire to eliminate all
discrimination in the workplace--including age discrimination.\43\
Likewise, Congress modeled the ADEA on Title VII.\44\
The majority based its holding on the notion that the prohibitions
against discrimination in the ADEA and Title VII need not be treated
consistently unless Congress states this explicitly.\45\ Because of
identical language in both statutes, the majority requires an employee
claiming age discrimination to prove more: they must now prove ``but-
for'' causation. This standard was rejected by the Court in Price
Waterhouse v. Hopkins,\46\ as well as by Congress in the 1991
Amendments to the Civil Rights Act.

B. Gross Increases The Burden Of Proof For Older Employees
The impact of Gross--that older workers attempting to prove
unlawful discrimination have a much higher burden--was immediately
recognized:
``The 'but-for' causation standard * * * makes it much
more difficult for plaintiffs to prevail in age discrimination cases *
* *. [I]t is not enough to show that age may have influenced the
employer's decision.'' ``[A] significant victory for employers.'' \47\
``Supreme Court Majority Makes It Harder for Plaintiffs to
Prove Age Discrimination Under the ADEA'' \48\
Without the ``traditional 'mixed motive analysis,' * * *
[plaintiffs'] job in court [will be] much more difficult.'' \49\
A ``sea change in current law [which] might even indicate
a seismic shift in the Supreme Court's interpretation of statutes that
deal with employment.'' \50\
``* * * It's becoming increasingly difficult for workers
to prove their claims. * * * Gross found that older workers bringing
age discrimination claims must meet a higher standard to prove their
claims than others who have been subject to unfair discrimination at
work.'' \51\
This was not simply a ``sky is falling'' reaction by the media.
Courts immediately understood Gross's importance, and that it
significantly changed the rules of the game for those attempting to
prove age discrimination:
``In the wake of [Gross] it's not enough to show that age
was a motivating factor. The Plaintiff must prove that, but for his
age, the adverse action would not have occurred.'' \52\
``The 'burden of persuasion does not shift to the employer
to show that they would have taken the action regardless of age, even
when a plaintiff has produced some evidence that age was one motivating
factor in that decision.' '' \53\
``[T]his Court interprets Gross as elevating the quantum
of causation required under the ADEA. After Gross, it is no longer
sufficient for Plaintiff to show that age was a motivating factor in
Defendant's decision to terminate him.'' \54\
The burden of persuasion does not shift to the employer
``even when plaintiff has produced some evidence that age was one
motivating factor in that decision.'' \55\
Pursuant to the Supreme Court's recent decision in Gross
v. FBL Financial Services, Inc., a claimant bringing suit under the
ADEA must demonstrate that age was not just a motivating factor behind
the adverse action, but rather the 'but-for' cause of it. Title VII, on
the other hand, does authorize a 'mixed motive' discrimination
claim.\56\
``Before the Supreme Court's decision in Gross, 'the
employee could prevail if the evidence, viewed in the light most
favorable to the plaintiff, would permit a jury to find that her
dismissal was motivated at least in part by age discrimination.' Gross
changed 'the latter part of this formulation by eliminating the mixed-
motive analysis that circuit courts had brought into the ADEA from
Title VII cases.' '' \57\
Under the increased burdens imposed by the ``but for'' standard,
courts are already dismissing age claims for failure of proof based
upon Gross.\58\

C. This ``But-For'' Causation Standard Imposes An Onerous
Burden On Victims of Age
The Court's ``but-for'' causation requirement places a significant
hardship on victims of age discrimination and permits consideration of
age under a statute that Congress intended to eradicate age
discrimination in employment. Employees face a heavy burden at trial
because showing the employer improperly considered age in the
employment decision is no longer a sufficient basis to establish
liability.\59\ A jury determination that age is not only a factor, but
the motivating factor for an adverse employment action, as the jury
found in Mr. Gross's case, is no longer sufficient to prove an ADEA
violation.\60\
But-for causation may largely nullify the ADEA, limiting relief to
only the most extreme cases of discrimination. Most employment actions
have several causes; this is especially true when adverse employment
actions occur in a down economy. Proving that one of several factors in
the employer's decision was the ``but-for'' cause of the decision is
particularly difficult, particularly where evidence of the employer's
intent is usually within the sole control of the employer. Employers
who improperly consider age may now escape liability if they are able
to point to additional factors they considered when making the
decision. Moreover, employers can easily create some rationale for the
adverse action, and employees will have little chance of showing that
bias, not the employer-asserted rationale, was the ``but-for'' cause.

III. Gross is creating a confusion and unsettling impact in the courts
Gross was a substantial departure from prior judicial
interpretations of the ADEA, and its effects have already impacted ADEA
litigation in the lower courts. Moreover, the decision's effects extend
well beyond the ADEA, as it has created uncertainty and eroded the
protections of similar antidiscrimination legislation.

A. Gross Raised Uncertainties About The Continued Use Of
The McDonnell Douglas Evidentiary Framework In
Summary Judgment
The Gross decision created confusion in the lower courts regarding
the plaintiff's burden at the summary judgment stage of litigation.
While the Gross Court determined the burden of persuasion never shifts
to the employer in ADEA cases, the majority left open the question of
whether the evidentiary framework of McDonnell Douglas v. Green \61\ is
appropriate under the ADEA.\62\ This framework addresses the burden of
production in Title VII cases, and courts have consistently adopted it
in the ADEA and other antidiscrimination statutes.\63\ In the wake of
Gross, however, lower courts feel compelled to reexamine this settled
precedent.
Long before Price Waterhouse and the 1991 amendments to Title VII,
the Supreme Court recognized the challenges employees face in proving
discriminatory animus on the part of their employer. In 1973, the Court
established an evidentiary framework to help sort through the difficult
task of determining discriminatory intent in employment cases in
McDonnell Douglas.\64\ Under this framework, once a plaintiff
establishes a prima facie case of age discrimination, the burden of
production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse action.\65\ If the defendant
articulates a legitimate reason, the McDonnell Douglas presumption
falls away, and the burden of production shifts back to the plaintiff
to demonstrate the defendant's proffered reason was a pretext to mask
unlawful discrimination.\66\
Though the ultimate burden still lies with the plaintiff, the
McDonnell Douglas framework assists plaintiffs by forcing the employer
to articulate a nondiscriminatory reason for the action, so the
plaintiff can disprove the proffered reason or prove it is only a
pretext for discrimination.\67\ Courts have applied this standard in
thousands of ADEA cases.\68\ Indeed, several of the Supreme Court's
seminal employment discrimination cases, such as Kentucky Retirement
Systems v. EEOC, discuss the McDonnell Douglas standard in claims of
age discrimination.\69\
Interestingly enough, the Supreme Court, within the Gross opinion,
makes the observation that it has never formally held that the
McDonnell Douglas standard applies in the context of the ADEA.\70\ So
the Supreme Court raises another issue not presented by the parties,
specifically, whether the McDonnell Douglas framework applies in ADEA
cases. However, the Supreme Court opts not to answer the question of
whether the framework applies to ADEA cases. By raising the issue but
not answering it, the Court added no clarity to the law and only
created more confusion.
To add to the confusion caused by the Supreme Court after Gross,
lower courts have questioned the continuing viability of McDonnell
Douglas or have felt compelled to reflect on, or alter the framework to
reflect, Gross's ultimate causation standard. In Smith v. City of
Allentown,\71\ the Third Circuit observed that ``although Gross
expressed significant doubt about any burden-shifting under the ADEA,
we conclude that the but-for causation standard required by Gross does
not conflict with our continued application of the McDonnell Douglas
paradigm in age discrimination cases.'' \72\ The Smith court continued
to explain:
Gross stands for the proposition that it is improper to shift the
burden of persuasion to the defendant in an age discrimination case.
The McDonnell Douglas standard, however, imposes no shift in the burden
of persuasion but instead on the burden of production. Throughout the
shifts, the burden of persuasion remains on the employee. Therefore,
Gross, which prohibits shifting the burden of persuasion to an ADEA
defendant, does not forbid our adherence to precedent applying
McDonnell Douglas to age discrimination claims.\73\
Other circuit decisions are in accord with the Third Circuit,
including the Second Circuit in Leibowitz v. Cornell University \74\
and Hrisinko v. New York City Department of Education,\75\ the Sixth
Circuit in Geiger v. Tower Automotive,\76\ and the Seventh Circuit in
Martino v. MCI Communications Services, Inc.\77\ While these courts
continue to apply the McDonnell Douglas framework, the majority's
unanswered observation in Gross is, at a minimum, causing the parties
and the courts to reexamine this application.\78\

B. The Gross Ruling Is Impacting The Burdens Of Proof Under
Other Laws Prohibiting Discrimination In Employment
Hundreds of federal, state, and local laws prohibit discrimination
in employment. Many use language identical or similar to the ``because
of'' standard codified in Title VII and the ADEA. Courts have
interpreted language in antidiscrimination statutes consistently,
recognizing that Congress understood judicial statutory interpretations
when it chose to model one statute after the other.\79\ Under Gross,
however, courts are cautioned, and in some cases believe they are
obligated, to reconsider the propriety of applying rules applicable
under one statute to a different statute.\80\ The result will be
confusion and increased litigation over the burdens of proof under all
of these statutes.\81\
The Gross majority reasoned its conclusion through a negative
legislative inference: Congress must not have intended the Price
Waterhouse standard to apply under the ADEA because Congress failed to
amend the ADEA when it amended Title VII to expressly codify the Price
Waterhouse motivating-factor standard.\82\ This reasoning ignores a
significant line of cases holding that courts should consistently
interpret and apply the language of both statutes with equal force.\83\
Moreover, Gross opens the door for courts to impose the same elevated
standard under any antidiscrimination statute that was not similarly
amended, even where the statute was clearly modeled after Title VII.
This method of statutory construction cripples congressional functions
because it implies that anytime Congress acts to codify existing case
law, which had previously been interpreted as applying to other similar
statutes, Congress's action has no impact on these other comparable
statutes unless they were simultaneously amended--even if these other
statutes were modeled on the amended statute and interpreted in a
manner consistent with the amended statute. This rationale places an
unreasonable burden on Congress to identify every statute potentially
affected by legislation.
At least one Court of Appeals has embraced this expansive
application of Gross. The Seventh Circuit has held that, ``After Gross,
plaintiffs in federal suits must demonstrate but-for causation unless a
statute (such as the Civil Rights Act of 1991) provides otherwise.''
\84\ Applying this standard, the Seventh Circuit overruled precedent
expressly adopting the motivating factor standard in prior cases and
extended the ``but-for'' causation requirement to cases where the
statutes included did not have the precise motivating factor language
used in the Civil Rights Acts of 1991.\85\ Such a broad application of
Gross leaves virtually all federal antidiscrimination and
antiretaliation legislation open to new interpretation, despite the
precedent and cannons of construction upon which Congress, plaintiffs,
and employers have rightfully relied.
Considering the indisputable connections between the various state
and federal antidiscrimination statutes, the Gross holding has prompted
the lower courts to revisit the causation standards of many
antidiscrimination laws. In a recent Fifth Circuit case filed under the
ADA and the Family Medical Leave Act, Crouch v. J C Penney Corp.,
Inc.,\86\ the court cautioned that ``the Supreme Court's recent opinion
in Gross v. FBL Financial Services, Inc. raises the question of whether
mixed-motive framework is available to plaintiffs alleging
discrimination outside the Title VII framework.'' \87\
Later, in Smith v. Xerox,\88\ the Fifth Circuit refused to extend
Gross to retaliation claims under Title VII. Despite noting that while
the considerations present in the retaliation analysis are ``similar to
the Supreme Court's reasoning in Gross,'' \89\ the majority believed
such a simplified explanation of Gross was incorrect.\90\ The dissent,
however, relying on Seventh Circuit case law and its view of the Gross
holding, argued that the courts must apply Gross to Title VII
retaliation claims and chastised the majority's arguments as a
``meaningless distinction indeed.'' \91\
As discussed, the Seventh Circuit did not avoid the issue of how
the Gross analysis impacts causation standards under other
antidiscrimination laws. In Serwatka v. Rockwell Automation Inc.,\92\
the court examined the pre-amended language of the ADA, which
prohibited discrimination ``because of'' an individual's disability or
perceived disability.\93\ The court determined that ``the importance
Gross attached to the express incorporation of mixed-motive in Title
VII suggests that when another antidiscrimination statute lacks
comparable language, mixed-motive claims will not be viable.'' \94\
Although provisions of the ADA specifically incorporate Title VII's
mixed-motive remedies, the Seventh Circuit was unconvinced and refused
to recognize the motivating-factor test absent express language in the
statute or explicit reference to Title VII's motivating-factor
standard.\95\ Decisions such as this indicate that, at least in the
Seventh Circuit, any plaintiff whose discrimination claim falls outside
the Title VII protected classes must prove ``but-for'' causation in
every case.
To date, district courts have applied Gross to require but-for
causation under state antidiscrimination statues,\96\ eliminated the
mixed-motive theory under the Juror Protection Act,\97\ and solidified
a decision to require but-for causation under the anti-retaliation
provision of Title VII.\98\ For decades there has been an accepted
standard for how plaintiffs prove discrimination under employment
discrimination laws and recognition that comparable statutes involve
comparable burdens and methods of proof. Gross has now opened the door
for increased litigation over the appropriate burden and methods of
proof under all the statutes prohibiting discrimination in employment,
even if they were expressly modeled after Title VII. Title VII makes it
clear after the 1991 amendments that these discrimination laws were
intended to protect workers from adverse actions motivated, in whole or
in part, by improper considerations. Under the Gross decision, every
statute must be examined anew to determine just how much discrimination
that statute will permit. Gross's ramifications extend far beyond the
ADEA, and this decision is having an immediate and detrimental effect
on plaintiffs bringing non-age-based employment discrimination claims.
Unless Congress acts to specifically express its intent, the courts
will continue to narrowly construe the ADEA and similar statutes in a
way that enables workplace discrimination by increasing the costs of
litigation and placing insurmountable burdens upon plaintiffs.

C. Some Courts Are Even Reading Gross As Requiring Age To
Be The Sole Cause, Leading To Nonsensical Results
And Practical Pleading Confusion
Though they face a difficult obstacle at trial, plaintiffs who
defeat summary judgment obviously fare better than many plaintiffs who
will be unable to bring their claims to trial. A number of lower
courts, interpreting Gross, now require proof that age was the sole
cause of an employer's decision, and have dismissed plaintiff's ADEA
claims who plead additional discriminatory causes for an employer's
adverse action.\99\ In these districts, plaintiffs are confronted with
impractical difficulties initiating an ADEA claim, as the mere pleading
of another discriminatory basis risks automatic dismissal of the age
claim.
For example, in Culver v. Birmingham Board of Education, the
plaintiff brought both Title VII and ADEA claims.\100\ The court
dismissed the ADEA claim, finding that Gross holds for the first time
that a plaintiff who invokes the ADEA has the burden of proving that *
* * [age] * * * was the only or the but-for reason for the alleged
adverse employment action. The only logical inference to be drawn from
Gross is that an employee cannot claim that age is a motive for the
employer's adverse conduct and simultaneously claim that there was any
other proscribed motive involved.\101\
In other words, some courts do not allow an ADEA plaintiff to plead
duel claims; to do so would admit that another motive was at play,
which, under this court's interpretation of Gross, would foreclose the
age claim.
Decisions like these are a harsh reality for older workers who,
prior to Gross, had the opportunity to show age was a consideration in
the employment decision. While raising the bar for older workers, Gross
lowers employers' standards of behavior by sending a message that age
may be a factor in employment decisions, so long as it is not the
determining factor. Moreover, as most courts continue to apply the
McDonnell Douglas burden-shifting standard, the Gross decision has
failed to clear the murky waters of burden-shifting in ADEA cases.\102\
Gross has the true effect of circumventing Congress' intent to
eliminate age as a factor in employment decisions by increasing the
burden on older employees, creating confusion in the lower courts, and
increasing litigation costs.

IV. HR 3721: Protecting Older Workers Against Discrimination Act
Congress was unequivocal about its desire to eliminate all
discrimination in the workplace--including age discrimination.\103\
Likewise, Congress modeled the ADEA on Title VII of the Civil Rights
Act,\104\ and the courts have long recognized the fundamental
relationship that exists between the statutes. Yet, the Gross decision
sent a message to Congress that if it wants the Supreme Court to
provide protections against discrimination, it must be specific.
Congress must act to ensure the ADEA is not stripped of all its
intended power and protect older employees' fundamental right to
nondiscriminatory treatment. Presently, the Protecting Older Workers
Against Discrimination Act has been proposed to restore the intended
protections of the ADEA.\105\
The preceding discussion highlights in detail the issues with the
Gross decision. HR: 3721 is a balanced response to it by returning the
law to the status quo. It also eliminates the confusion created by
Gross. Indeed, some say it does not go far enough because it still
allows employers who have considered age to limit their damages if they
can show they would have taken the same action anyhow.
The Protecting Older Workers Against Discrimination Act overrules
Gross and expressly addresses issues the Gross Court ignored or
misinterpreted. The amendment largely mirrors the 1991 amendments to
Title VII, which codified the Price Waterhouse motivating-factor theory
and transformed its ``same decision'' affirmative defense into a
limitation on remedies. In its current form, the amendment:
Restores the motivating factor test to ADEA claims by
specifying that a plaintiff establishes an unlawful employment practice
by demonstrating either age was ``a motivating factor for the practice
complained of, even if other factors also motivated that practice, or
the questionable practice would not have occurred in the absence of an
impermissible factor.'' \106\
Clearly establishes the motivating factor standard as the
congressionally intended standard in all federal discrimination
statutes absent an explicit statement adopting another proof
standard.\107\
Adopts Title VII's same-decision limitation on
remedies.\108\ This allows juries to find employers liable for
considering a protected characteristic while limiting the available
remedies when the employer can show that it would have taken the
adverse action even without considering the characteristic.
Expressly preserves the evidentiary framework set forth in
McDonnell Douglas.\109\
Answers the issue actually presented in Gross by
clarifying that a plaintiff may demonstrate mixed-motive liability by
relying on ``any type or form of admissible circumstantial or direct
evidence.'' \110\
Preserves and/or restores the mixed-motive test in any
Federal law forbidding employment discrimination; any law forbidding
retaliation against an individual for engaging in federally protected
activity; and any provision of the Constitution that protects against
discrimination or retaliation.\111\
Essentially, this amendment restores the protections afforded under
the ADEA prior to the Gross decision and ensures courts will interpret
similar statutes accordingly. Employers will no longer be able to
defeat the victim's discrimination claims with a mere showing that some
other reason was a factor in their decision. The statute makes it clear
that there is no tolerable level of discrimination in employment.
Gross runs contrary to our national commitment to equality. Thus,
Congress should take positive steps to ensure that our civil rights and
employment laws protect all American workers. At the very least,
Congress must stem the ``Gross'' implication that congressional action
to strengthen one statute may be deemed to weaken other statutes
dealing with similar issues but not simultaneously amended. This was
clearly not the intent of Congress in 1991 when it amended Title VII to
reflect its approval of Price Waterhouse's ``because of''
interpretation. And just as Congress, in response to Supreme Court
decisions, acted in 1991 to reaffirm its intention ``to prohibit all
invidious consideration of sex, race, color, religion, or national
origin in employment decisions,'' \112\ Congress must now act to
restore those protections for our older workers.
The Gross decision has detrimentally affected plaintiffs' ability
to access the courts and to obtain relief for employment
discrimination. If Congress wishes to secure the rights it thought it
guaranteed in the civil rights laws, it must act to clarify that
intent.\113\ As the Supreme Court has said, ``It is for the Congress,
not the courts, to consult political forces and then decide how best to
resolve conflicts in the course of writing the objective embodiments of
law we know as statutes.'' \114\ As Justice Ginsburg noted in Ledbetter
v. Goodyear Tire & Rubber Co.,\115\ ``Once again, the ball is in
Congress' court.'' \116\.

ENDNOTES

\1\ 129 S. Ct. 2343 (2009).
\2\ A copy of my biography is attached.
\3\ Referring to a broader interpretation of the ADEA, the Gross
majority said, ``[T]hat is a decision for Congress to make.'' Gross,
129 S. Ct. at 2349 n.3. The five justices in the majority hung their
hat on what they deemed was Congress's failure to act.
\4\ Id. at 2347.
\5\ Id.
\6\ Gross at 2344-2345.
\7\ 490 U.S. 228 (1989).
\8\ Id.
\9\ Gross at 2346.
\10\ Id. at 2351.
\11\ Id. at 2344.
\12\ Id. at 2352.
\13\ Gross at 2350.
\14\ Id. at 2351.
\15\ Id. at 2351, n.3.
\16\ Id. at 2353 (Stevens, J. dissenting).
\17\ Gross at 2346.
\18\ Id. at 2348, 2353.
\19\ Id. at 2350.
\20\ Gross Tr. of Oral Arg. 20--21, 28--29.
\21\ Id. at 2353 (Stevens, J., dissenting).
\22\ See Price Waterhouse v. Hopkins, 490 U.S. 228, 244-247
(1989)(plurality opinion)(concluding that the words ``because of'' such
individual's [protected classification] mean that [the protected
classification] must be irrelevant to employment decisions).
\23\ ``* * * the Courts of Appeals to have considered the issue
unanimously have applied Price Waterhouse to ADEA claims.'' Gross at
2354-55, n.5 (Stevens, J., dissenting)(citing numerous circuit court
opinions applying Price Waterhouse to ADEA claims.).
\24\ 214 F.3d 57 (1st Cir. 2000).
\25\ Febres at 64.
\26\ Id.
\27\ Id.
\28\ ``Under [the ADEA], the plaintiff retains the burden of
persuasion to establish that age was the ``but-for'' cause of the
employer's adverse action.'' Gross at 2351.
\29\ Gross at 2354 (Stevens, J. dissenting).
\30\ Id. at 2349.
\31\ See 42 USC Sec. Sec. 2000e-2(m), 2000e-5(g)(2)(B).
\32\ Gross at 2350-51.
\33\ ``This Court has never held that the burden-shifting framework
[of Title VII] applies to ADEA claims. And we decline to do so now.''
Gross at 2349.
\34\ Id. at 2349.
\35\ Id.
\36\ See n.23 supra.
\37\ See 42 USC Sec. Sec. 2000e-2(m), 2000e-5(g)(2)(B).
\38\ In addition to the logical conclusion that Congressional
codification of the motivating-factor test evinced Congressional
approval of the test, Justice Stevens pointed out in his dissent that
``There is, however, some evidence that Congress intended the 1991
mixed-motives amendments to apply to the ADEA as well. See H. R. Rep.,
pt. 2, at 4 (noting that a ``number of other laws banning
discrimination, including * * * the Age Discrimination in Employment
Act (ADEA), are modeled after and have been interpreted in a manner
consistent with Title VII,'' and that ``these other laws modeled after
Title VII [should] be interpreted consistently in a matter consistent
with the Title VII as amended by this Act,'' including the mixed-motive
provisions.)'' Gross at 2356 (Stevens, J. dissenting).
\39\ Gross at 2349 (``We cannot ignore Congress' decision to amend
Title VII's relevant provisions but not make similar changes to the
ADEA. '').
\40\ H. R. Rep. No. 102-40, pt.2, p.2 (1991).
\41\ See n.23 supra.
\42\ Id. at 2347.
\43\ In McKennon v. Nashville Banner Publ'g Co., the majority
stated, ``The ADEA, enacted in 1967 as part of an ongoing congressional
effort to eradicate discrimination in the workplace, reflects a
societal condemnation of invidious bias in employment decisions. The
ADEA is but part of a wider statutory scheme to protect employees in
the workplace nationwide.'' 513 U.S. 352, 357 (1995).
\44\ Lorillard v. Pons, 434 US 575, 584 (1978).
\45\ Id. at 2350.
\46\ 490 U.S. 228, 249-50 (1989) (plurality opinion); id. at 259-60
(White, J., concurring in the judgment); id. at 261 (O'Connor, J.,
concurring in the judgment).
\47\ Supreme Court EEO Decisions Present Mixed Results for
Employers, 25 No. 7 TERMINATION OF EMP. BULL. 1 (July 2009) (emphasis
added).
\48\ Supreme Court Majority Makes It Harder for Plaintiffs to Prove
Age Discrimination Under the ADEA, 23 No. 6 EMP. L. UPDATE 1 (June
2009).
\49\ Timothy D. Edwards, Supreme Court Rejects Mixed-Motive Jury
Instruction in Age Discrimination Case, 18 No. 8 WIS. EMP. L. LETTER 4
(Aug. 2009).
\50\ Michael Newman & Faith Isenhath, Supreme Court Gives Mixed-
Motive Analysis a Mixed Review, 56 FED. LAW. 16 (Aug. 2009).
\51\ Laura Bassett, Older Jobseekers Face an Uphill Climb, The
Huffington Post, (April 27, 2010).
\52\ Martino v. MCI Commc'ns Servs., Inc., 574 F.3d 447, 454 (7th
Cir. 2009).
\53\ Geiger v. Tower Automotive, No. 08-1314, 2009 WL 2836538, at
*4 (6th Cir. Sept. 4, 2009).
\54\ Fuller v. Seagate Technology, No. 08-665, 2009 WL 2568557, at
*14 (D. Colo. Aug. 19, 2009).
\55\ Woehl v. Hy-Vee, Inc. No. 08-19, 2009 WL 2105480, at *4 (S.D.
Iowa, July 10, 2009).
\56\ Leibowitz v. Cornell Univ., 584 F.3d 487, n.2 (2d Cir. 2009).
\57\ Philips v. Pepsi Bottling Group, 2010 U.S. App. LEXIS 8391, at
*7 (10th Cir. 2010)(citing Gorzynski v. Jetblue Airways Corp., 596 F.3d
93, 106 (2d Cir. 2010).
\58\ In Wellesley v. Debevoise & Plimpton, LLP, a Second Circuit
panel cited Gross and held that since the plaintiff did not provide
evidence of ``but-for'' age discrimination, her claims should be
dismissed. No. 08-1360, 2009 WL 3004102, at *1 (2d Cir. Sept. 21,
2009). Similarly, in Guerro v. Preston, the court cited Gross and
dismissed the plaintiff's claims because she failed to satisfy ``but-
for'' causation. No. 08-2412, 2009 WL 2581569, at *6 (S.D. Tex. Aug 18,
2009). Finally, in Fuller v. Seagate Technology, the court dismissed a
plaintiff's ADEA claim, because he failed to prove direct causation.
No. 08-665, 2009 WL 2568557, at *14 (D. Colo. Aug. 19, 2009).
\59\ See Anderson v. Equitable Resources, Inc., 2009 U.S. Dist.
LEXIS 113256, at *45 (W.D. Pa. 2009)(granting summary judgment for
employer where plaintiff proffered sufficient evidence to show that age
was a factor in his termination, but not a determinative one); Kelly v.
Moser, Patterson & Sheridan, LLP, 2009 U.S. App. 22352, at *13 (3rd
Cir. 2009)(finding it insufficient, under Gross, to show that age was a
secondary consideration in the employer's decision, not a determinative
``but for'' factor); Woods v. The Boeing Company, 2009 U.S. App. LEXIS
26717 (10th Cir. 2009)(Anderson, J., concurring)(emphasizing to the
trial court that the plaintiff must persuade the jury that, all things
being equal expect for age, the employer would have hired the plaintiff
if he had been younger).
\60\ Gross at 2347.
\61\ 411 U.S. 792 (1973).
\62\ Gross at 2349, n.2.
\63\ McDonnell Douglas at 802; Arroyo-Audifred v. Verizon Wireless,
Inc., 527 F.3d 215, 218 (1st Cir. 2008); D'Cunha v. Genovese/Eckerd
Corp., 479 F.3d 193, 194-95 (2d Cir. 2007); Pipen v. Burlington Res.
Oil & Gas Co., 440 F.3d 1186,1193 (10th Cir. 2006); see also Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133 (2000)(assuming arguendo that
the McDonnell Douglas framework applies to an ADEA claim, and applying
it to such claim, ``[b]ecause the parties do not dispute the issue.
'').
\64\ McDonnell Douglas at 802.
\65\ Id.
\66\ Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143 (citing
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
\67\ See Burdine at 253(elaborating on the burden-shifting
framework established in McDonnell Douglas).
\68\ To give an example of McDonnell Douglas's wide spread
acceptance, a LexisNexis search between 2007 and 2010 identified 1,977
cases where the McDonnell Douglas standard was discussed in the context
of ADEA claims. (LexisNexis Federal and State Cases, Combined>Terms &
Connectors Search> McDonnell Douglas and ADEA or age discrimination or
Age Discrimination in Employment Act or A.D.E.A. and date aft 2007.)
\69\ 128 S.Ct. 2361 (2008).
\70\ Gross at 2349, n.2.
\71\ 589 F.3d 684 (2009).
\72\ 589 F.3d 684 (2009).
\73\ Id. at 691.
\74\ 584 F.3d 487 (2009).
\75\ 2010 U.S. App. LEXIS 5180.
\76\ 579 F.3D 614 (2009).
\77\ 574 F.3D 447 (2009).
\78\ Furthermore, it seems as though the confusion surrounding the
application of Gross even in the age context will persist. Despite the
holding in Gross, at least one district court recently held that a
mixed motive analysis is still applicable in ADEA claims within the
federal sector. In Fuller v. Gates, the court stated that a plaintiff
who is lacking direct evidence of age discrimination may proceed under
either a pretext theory or mixed motive theory, or both.2010 U.S. Dist.
LEXIS 17987.
\79\ ``The relevant language in [Title VII and the ADEA] is
identical, and we have long recognized that our interpretations of
Title VII's language apply 'with equal force in the context of age
discrimination, for the substantive provisions of the ADEA were derived
ad haec verba from Title VII.' '' Gross at 2354 (Stevens, J.,
dissenting)(citing Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 121 (1985)((quoting Lorillard v. Pons, 434 U.S. 575, 584 (1978)).
See also n.9 supra.
\80\ Gross at 2349.
\81\ A recent Third Circuit decision under 42 U.S.C. Sec. 1981
also exemplifies the confusion the courts now confront. While the
majority in Brown v. J. Katz, Inc., did not believe that Gross had any
impact on the litigation of Section 1981 mixed-motive claims, the
concurring opinion pointed out that simply continuing to use Title VII
analysis for Section 1981 mixed-motive claims ``ignores the fundamental
instruction in Gross that analytical constructs are not to be simply
transposed from one statute to another without a thorough and
thoughtful analysis.'' 581 F.3d 175, 182 (3d Cir. 2009).
\82\ Gross at 2349.
\83\ Id. at 2351. (Stevens, J. dissenting).
\84\ Gunville v. Walker, 583 F.3d 979 (7th Cir. 2009)( citing
Fairley v. Andrews, 578 F.3d 518 (7th Cir. 2009).
\85\ Fairley v. Andrews, 578 F.3d 518(7th Cir. 2009)(stating that
``[7th Circuit decisions adopting the motivating factor standard] do
not survive Gross, which holds that, unless a statute (such as the
Civil Rights Act of 1991) provides otherwise, demonstrating but-for
causation is part of the plaintiff's burden in all suits under federal
law. ''); Serwatka v. Rockwell Automation Services, Inc. 2010 U.S. App.
LEXIS 948 (7th Cir. 2010).
\86\ 337 Fed. Appx. 399 (2009).
\87\ Crouch v. J C Penney Corp. Inc., 2009 U.S. App. LEXIS 14362
(5th Cir. 2009). See also Hunter v. Valley View Local Sch., 579 F.3d
688 (6th Cir. 2009)(stating that Gross requires the court to revisit
the propriety of applying Title VII precedent to the FMLA by deciding
whether the FMLA authorizes motivating-factor claims, and holding that
it does).
\88\ 2010 U.S. App. LEXIS 6190.
\89\ 2010 U.S. App. LEXIS 6190 at 18.
\90\ 2010 U.S. App. LEXIS 6190 at 19.
\91\ 2010 U.S. App. LEXIS 6190 at 45.
\92\ 2010 U.S. App. LEXIS 948 (7th Cir. 2010).
\93\ Id. at *11. [The version of the ADA applicable to the Serwatka
case in relevant part provides that ``[n]o covered entity shall
discriminate against a qualified individual with a disability because
of the disability of such individual in regard to job application
procedures, the hiring, advancement or discharge of employees, employee
compensation, job training and other terms, conditions, and privileges
of employment.'' 42 U.S.C. Sec. 12112(a) (2008). Pursuant to the ADA
Amendments Act of 2008, Congress has made substantial changes to the
ADA, which took effect on January 1, 2009. The language of the statute
has been modified to prohibit an employer from discriminating against
an individual ``on the basis of disability.'' 42 U.S.C. Sec. 12112(a)
(2009). The Seventh Circuit concluded that whether ``on the basis of''
means anything different from ``because of'', and whether this or any
other revision to the statute matters in terms of the viability of a
mixed-motive claim under the ADA, were not questions it needed to
consider in the Serwatka appeal. Serwatka at 962-63.]
\94\ Id. at *10.
\95\ Id. at *13-14.
\96\ See Kozlosky v. Steward EFI, LLC, 2009 U.S. Dist. LEXIS 77605
(W.D. Tex. 2009)(holding that Gross applies to age discrimination
claims under the Texas Labor Code); Cormack v. N. Broward Hospital
Dist., 2009 U.S. Dist. LEXIS 76396 (S.D. Fl. 2009)(holding that Gross
applies to age discrimination claims under the Florida Civil Rights
Act).
\97\ Williams v. District of Columbia, 646 F. Supp. 2d 103 (D.C.
2009).
\98\ Beckford v. Timothy Geithner, Secretary of the Treasury, 2009
U.S. Dist. LEXIS 96038 (Dist. Columbia, Oct 15, 2009).
\99\ See Love v. TVA Board of Directors, No. 06-754, 2009 WL
2254922 (M.D. Tenn. July 28, 2009) (dismissing plaintiff's ADEA claim
reasoning that, under Gross, since race had been a factor, plaintiff
could not prove that age was the sole factor); see also Wardlaw v. City
of Philadelphia Streets Department, Nos. 05-3387, 07-160, 2009 WL
2461890, at *7 (E.D. Pa. Aug. 11, 2009) (dismissing plaintiff's ADEA
claim because plaintiff had alleged discrimination on other protected
basis; thus, she could not show that age was the sole factor).
\100\ 646 F. Supp. 2d 1270, 1271 (N.D. Ala. 2009).
\101\ Id.; but see Belcher v. Service Corp. International, 2009
U.S. Dist. LEXIS 102611 (E.D. Tenn. 2009)(``While Gross arguably makes
it impossible for a plaintiff to ultimately recover on an age and a
gender discrimination claim in the same case, the undersigned does not
read Gross as taking away a litigant's right to plead alternate
theories under the Federal Rules. '').
\102\ The Gross majority suggested that burden-shifting, at least
of the Price Waterhouse variety, has been difficult to apply in
practice and that its cumbersome nature has ``eliminated any
perceivable benefit to extending its framework to ADEA claims.'' Gross
at 2352.
\103\ In McKennon v. Nashville Banner Publ'g Co., the majority
stated, ``The ADEA, enacted in 1967 as part of an ongoing congressional
effort to eradicate discrimination in the workplace, reflects a
societal condemnation of invidious bias in employment decisions. The
ADEA is but part of a wider statutory scheme to protect employees in
the workplace nationwide.'' 513 U.S. 352, 357 (1995).
\104\ Lorillard v. Pons, 434 U.S. 575, 584 (1978).
\105\ The House version of the bill was introduced on October
6,2009, H.R. 3721, 111th Congress (2009). The Senate version of the
bill was introduced on October 6th, 2009, S 1756, 111th Congress
(2009). The language of the bills track each other. For ease of
discussion we will reference the house bill.
\106\ H.R. 3721, Sec. 3(g)(1)
\107\ H.R. 3721, Sec. 3(g)(5)
\108\ H.R. 3721, Sec. 3(g)(2)
\109\ H.R. 3721, Sec. 3(g)(4)
\110\ H.R. 3721, Sec. 3(g)(3)
\111\ H.R. 3721, Sec. 3(g)(5)
\112\ H.R. Rep. No. 102-40, pt. 2, at 17 (1991).
\113\ This is not a new issue for Congress, as just last year
Congress reversed the same majority's decision in by passing the Lilly
Ledbetter Fair Pay Act In Ledbetter v. Goodyear Tire & Rubber Co., the
Court held that ``an employee wishing to bring a Title VII lawsuit must
first file an EEOC charge within * * * 180 days 'after the alleged
unlawful employment practice occurred,''' and that new violations did
not occur because of non-discriminatory acts (here, the issuing of
paychecks). 550 U.S. 618, 621 (2007). The Ledbetter dissent
specifically called upon Congress to act to correct the ``Court's
parsimonious reading of Title VII.'' Id. at 661 (Ginsburg, J.,
dissenting). Congress indeed responded by passing the Lilly Ledbetter
Fair Pay Act, which clarified that the 180-day statute of limitations
resets each time ``a discriminatory compensation decision * * * occurs
* * *.'' Pub. L. No. 111-2, 123 Stat. 5 (2009).
\114\ Circuit City, 532 U.S. at 120.
\115\ 550 U.S. 618 (2007)
\116\ 550 U.S. at 661 (Ginsburg, J., dissenting).
______

Chairman Andrews. Thank you, Mr. Foreman.
We thank each of the four of you. You did a very good job
in educating the committee. We are going to try to get now to
the questions.
Mr. Dreiband, on page 9 of Justice Thomas's majority
opinion, he says that the law now is the plaintiff has to
retain the burden of persuasion to establish that age was the
but for cause of the employer's adverse action.
I want to give you these facts. Let's assume that a sales
employer comes up with a productivity standard, number of sales
per employee per year. And they apply the standard, and 80
percent of the people over 50 get fired because they don't meet
the standard and 80 percent of the people under 50 keep their
jobs because they do. And one of the people over 50 files an
age discrimination lawsuit under the statute in front of us
today.
So the record is that there is this productivity standard,
there are these results when it is applied, and that is it.
There is no other discovery, no other information that would
show any intention by the employer. The defendant moves for
directed verdict after the plaintiff's case in chief is put on.
In your opinion, under the Gross decision, what does the
court do with that motion?
Mr. Dreiband. Well, I think it would depend on the totality
of the evidence, of course.
Chairman Andrews. What else do you want to know?
Mr. Dreiband. I am sorry, what was that?
Chairman Andrews. What else do you want to know about the
evidence?
Mr. Dreiband. Well, it sounds like what you described is
simply a policy and statistics about rates of satisfying the
productively standard.
Chairman Andrews. Right. Assume that is the entire record
in front of you.
Mr. Dreiband. Yeah. And so, presumably then, we are
envisioning a trial in which each side, I guess, would put up
an expert who would say that the statistics show what they
show----
Chairman Andrews. Right.
Mr. Dreiband [continuing]. And no other witness----
Chairman Andrews. So let's say you have an expert witness
for the plaintiff who says, this is not really a valid standard
of measuring productivity. And you have an expert witness for
the defendant who says it is. And you have the statistical
result that I just posited. Who wins the motion for directed
verdict, under Gross?
Mr. Dreiband. Well, it is impossible to say from that
limited amount of information, number one.
Number two, it would depend on the theory that the
plaintiff was pursuing. For example, if the plaintiff was
pursuing a pattern or practice of discrimination claim on
behalf of a class of victims----
Chairman Andrews. No, say it is just one plaintiff, not a
class action, one plaintiff. One of the people who is over 50
gets fired, says, ``I got fired because I am over 50, and this
is my proof. This statistical evidence is my proof.''
Mr. Dreiband. And so that is it?
Chairman Andrews. Yep.
Mr. Dreiband. Well, I guess what I would say is, first of
all, that is not the way cases get litigated, normally. I have
never heard of a case in that fashion----
Chairman Andrews. Well, okay. Of course, the normal has now
changed because of the Gross decision. But----
Mr. Dreiband. Well, I don't think the Gross decision
changes at all the----
Chairman Andrews [continuing]. The question is, who wins
the motion for directed verdict?
Mr. Dreiband. Well, I can't answer the question under the
facts as presented.
Chairman Andrews. What other facts would you like to hear?
Mr. Dreiband. I would like to know what the plaintiff
testified about and what----
Chairman Andrews. The plaintiff says, ``I did well for 15
years. I got great employee evaluations. One day, they called
me in and said, `Under this productivity standard, you don't
measure up. You are fired.' ''
Mr. Dreiband. I think what we would have to know then is
exactly whether there was any evidence that what the employer
said was untrue, whether the employer selectively applied----
Chairman Andrews. The employer applied it to everybody in
the company. The employer says, ``Look, we did a productivity
study. We care about how many units you sell per employee. That
was the standard, and that is what we did.''
Mr. Dreiband. And so, under this hypothetical, the employer
simply fired everybody in the company who didn't satisfy the
standard. There is no other evidence otherwise.
Chairman Andrews. Yes. And 80 percent of those over 50 get
fired, 80 percent of those under 50 get kept. There is a motion
for directed verdict by the defendant. Who wins?
Mr. Dreiband. And this is a single plaintiff case?
Chairman Andrews. Yep.
Mr. Dreiband. No evidence to show that the employer
selectively applied it. This is a claim for intentional----
Chairman Andrews. Well, let's stop on that for a minute.
What might that evidence look like? What evidence might
validate the point you just made, that the employer selectively
applied this? What would the plaintiff have to prove?
Mr. Dreiband. Well, there are times when employers have
standards, productivity standards for example, by way of
example, in which the employer applies them to people of one
category, let's say in this case older people, but do not apply
the standards in the same way to younger people. And if that
were the case, then I would expect the district court judge
would deny the motion.
Chairman Andrews. Okay. Assume here it isn't, though, that
it was not selectively applied. Who wins?
Mr. Dreiband. I would have to understand what theory the
plaintiff was pursuing in the case. For example, the Supreme
Court has established that a plaintiff can pursue what is
called a disparate impact theory of discrimination----
Chairman Andrews. True. But assume that this is a disparate
treatment case.
Mr. Dreiband. It sounds like, from what--the facts that you
have described do not suggest that--unless I am missing
something, other than the statistical evidence, you are saying
there is no other evidence of any kind of disparate treatment
against anybody.
Chairman Andrews. That is it. This is a smart employer who
knows not to leave a smoking gun. So the employer says, clean
up the record, this is what we are going to say. They had these
conversations with their lawyer. There is no smoking gun here,
it is what they say. Who wins the motion for directed verdict?
Mr. Dreiband. There normally is not a smoking gun at all.
Chairman Andrews. Okay, but who--I understand that. But who
wins the motion for directed verdict?
Mr. Dreiband. I can't answer the question based on the
hypothetical, because, number one, a hypothetical assumes a
trial that, in my experience in nearly 20 years of practicing
law, has never happened.
Chairman Andrews. Well, all of which was pre-Gross. So you
don't have an opinion who wins?
Mr. Dreiband. I am sorry, what?
Chairman Andrews. You don't have an opinion who wins that
motion for a directed verdict?
Mr. Dreiband. You know--I can't answer the question based
on the hypothetical you have presented, because it assumes an
unrealistic way of litigating a case that has never been done
in my experience. I have never heard of such a case. I----
Chairman Andrews. I am over my time, but I would just ask
you, what facts do you think would be added in the case that
you have experienced? What do you think----
Mr. Dreiband. Well, for example, what I would like to know
is, why does the employer have the standard that you
identified?
Chairman Andrews. Their testimony is that we wanted to
improve our sales productivity.
Mr. Dreiband. That what?
Chairman Andrews. We wanted to improve our sales, we wanted
to sell more of our product.
Mr. Dreiband. Yeah, and it is very possible that that is a
legitimate reason that the employer implemented the practice.
It is also possible----
Chairman Andrews. Right.
Mr. Dreiband [continuing]. That the employer did it because
the employer wanted to find a reason to eliminate older
workers. I think----
Chairman Andrews. How would we prove that? How would we put
evidence on the record to support that possibility? What
evidence would the plaintiff adduce to prove that possibility?
Mr. Dreiband. Well, we could demonstrate--it depends. I
mean, we would demonstrate, for example, as you pointed out,
there could be statistical evidence of the sort that you
mentioned. Presumably, the plaintiff would not only himself
testify or herself testify, other people would testify about
the fact that the productivity standard was not designed or did
not, in fact, increase productivity or it was not done so with
a legitimate business purpose.
You know, it would really have to depend on the evidence
that the plaintiff was able to produce at a trial, and the
district court judge----
Chairman Andrews. But we have posited that the plaintiff
has produced that statistical evidence, and the testimony of
the employer is that there were, you know, no negative comments
made to the employee. What else would the plaintiff adduce that
would help to prove that possibility of bias?
Mr. Dreiband. Well, there could be many other----
Chairman Andrews. Like what?
Mr. Dreiband [continuing]. Types of evidence. For example,
as I mentioned, there could be anecdotal evidence of other
people treated differently. There could be----
Chairman Andrews. Well, but is that relevant? Because this
case was about the plaintiff, not about other people. Wouldn't
that be irrelevant?
Mr. Dreiband. No. It depends on the plaintiff's theory of
the case. If the plaintiff's theory of the case is that the
employer implemented a standard to govern many people, in this
case, the company or a whole category of people or something
like that, then the plaintiff would introduce, under your
hypothetical, both statistical and anecdotal evidence to
demonstrate, number one, that the practice was put in place
without a legitimate business purpose if it was; that, in fact,
the employer selectively applied it to people and, in fact, did
so to favor younger employees. And if that----
Chairman Andrews. I apologize for going over my time. I
would just conclude with this comment. I think that what the
Gross decision does is give the plaintiff an unreachable burden
of proof. Because I think what this dialogue shows is the
plaintiff is going to have to come up with oral or written
representations by the employer to someone that they were
motivated by some bias or animus here. Foolish employers don't
do that--foolish employers do, but smart employers don't.
And I think the whole purpose for the burden shifting is to
recognize the reality of the workplace, where the employee
doesn't have access to that sort of thing. And I think that is
the flaw in your argument. But I am sure there will be other
chances to discuss that.
Dr. Price, I am sorry for going over. I will give you
similar dispensation.
Mr. Price. Thank you, Mr. Chairman.
That may have made good theater. I guess the honest answer
to it is that the judge decides, you know, based upon the
evidence, right? But what----
Mr. Dreiband. That is correct, yeah.
Mr. Price. So I guess that the plaintiff needs to have Mr.
Andrews as his counsel, and then we will be able to get to the
right answer in all of this.
I want to thank the witnesses for their testimony, as well.
And I am struck by some discrepancy in some of the testimony. I
have heard from Mr. Foreman that the Gross case has resulted in
havoc in the courts and that it reinstates the law prior to
that of Gross. And then, Mr. Dreiband, from you I have heard
that findings have largely been in favor of the plaintiffs
since then and that there hasn't been significant disruption in
the courts.
I would ask you, one, to comment on that. And then, two, if
we were to adopt and this bill were to be signed into law, what
laws would be affected by the bill as it is written before us?
Mr. Dreiband. Well, on the first question about whether the
decision has created havoc in the courts, as I mentioned, 10 of
the 12 circuit courts of appeals have issued decisions that
favor plaintiffs, number one. And, number two, the decision did
strip away the so-called ``same decision'' or ``same action''
defense, which previously was available to employers.
In terms of restoring the law to what it was before Gross,
the bill does not do that either. In fact, the bill would
change the law. I would point out, in that respect, that the
Court of Appeals in Mr. Gross's case considered the laws that
existed, you know, before the Supreme Court's decision, applied
the Price Waterhouse v. Hopkins decision, a 1989 Supreme Court
case, and concluded that Mr. Gross lost under that standard
because he conceded, or at least his lawyer did on his behalf,
that he did not present any direct evidence of discrimination.
That is what his lawyer apparently told the court of appeals,
and, under the Price Waterhouse standard as it existed at the
time, that the so-called mixed motive instruction was improper.
With respect to the laws affected by the bill, my view of
that is that the bill is vague and ambiguous because it does
not define the laws. And so what I think we are left with is
enormous uncertainty about which laws would be amended. And
this is something that Congress can easily fix simply by
amending the bill to list the laws it intends to amend. If the
Congress doesn't do that and enacts the bill in its current
form, I think what we will see are years or decades of
litigation about what laws, in fact, are changed by this bill.
Mr. Price. So if I were to ask what is wrong with having
this single standard across the board, the answer to that is
that it results in litigation as to whether or not it applies
to the whole array of laws out there; is that correct?
Mr. Dreiband. There is nothing wrong with having a single
standard, a burden of proof standard, for example. The Supreme
Court established that standard in 1973 in a case called
McDonnell Douglas v. Green, and certainly the Congress could
endorse that for particular statutes.
I think the confusion, though, is that the bill does not
identify which laws it would seek to amend. I mean, we know,
for example, that it would amend the Age Discrimination in
Employment Act. We know that there are some laws that
unambiguously are employment discrimination laws. But there are
several laws in which we simply don't know--or, rather, I would
say, that litigants will argue about.
Let me give you one example, the Family and Medical Leave
Act. That law is neutral in terms of how it is written, and it
provides for 12 weeks of unpaid leave for various family
reasons related to, for example, to care for a sick family
member or the birth or adoption of a child or for other medical
reasons. The Supreme Court of the United States has described
that law as something that helps women because women, according
to the Court, tend to be caregivers more than men. But the law
is drafted in a neutral fashion, and so, on its face, it does
not appear to be an employment discrimination law.
But what we can expect is, if the bill passes in its
current form without identifying the laws that it covers,
litigants will spend several years or decades litigating
whether or not that law and several others are covered by this
bill or not. And that is something, as I say, in the same way
that Congress listed the laws that it intended to amend when it
enacted the Lilly Ledbetter Fair Pay Act, that is something
Congress can easily correct with this bill.
Mr. Price. And that is why you believe the bill as written
would result in significant increased litigation; is that
correct?
Mr. Dreiband. That is correct, on that issue, yes.
Mr. Price. Just one final question, if I may, Mr. Chairman.
Many have claimed, in the wake of this Gross case, that a
plaintiff can only prevail on a claim of age discrimination if
the plaintiff's age was the single and only reason for an
employment action. Is that your understanding of what the Gross
decision means?
Mr. Dreiband. No.
I would point out that, in Mr. Gross's case, the
alternative jury instruction at issue defined ``but for
causation'' as simply something that determined the outcome, in
this case the alleged demotion, and other factors can play a
role in the decision.
And I would note, as well, that the Supreme Court in the
Gross decision clarified that there is no heightened
evidentiary burden on plaintiffs in discrimination cases. And I
think that is why we have seen the United States courts of
appeals issue so many decisions in favor of plaintiffs since
the decision came down.
Mr. Price. Great.
Thank you, Mr. Chairman.
Chairman Andrews. Thank you.
The chair recognizes the gentlelady from New York, Ms.
McCarthy, for 5 minutes.
Mrs. McCarthy. Thank you, Mr. Chairman. And thank you for
holding this hearing.
Listening to the debate--and I am not a lawyer, but going
through some of the written testimony from the dissent, Justice
Stevens wrote that the majority had engaged in unnecessary
lawmaking. And I guess some of us sitting here are wondering or
worrying that we are seeing more and more of this on the Court.
But I guess the question I want is, to Mr. Foreman, what
are the dangers of letting the Gross stand and other workplace
discrimination law? Are they in jeopardy now too?
Mr. Foreman. Absolutely. And I think that is when I said in
my opening remarks about wreaking havoc, Ranking Member Price,
I think you indicated in your opening statement that a
physician's advice is, ``Do no harm.'' We wish the Supreme
Court would have followed that, but the harm has already been
done through the Gross decision.
And what is happening is, throughout the courts, the courts
are now taking established precedent under the ADA--Mr.
Dreiband mentioned the FMLA. There were court cases prior to
Gross that said, mixed motive applies in the FMLA. Now it is
being litigated, so all this litigation is occurring because of
Gross.
In the cases that he is relying on, the 10th Circuit, that
cite Gross, that is all they do. It is a motion for summary
judgment that goes up on appeal, and they say Gross is now the
law, we believe McDonnell Douglas applies, we are going to
allow the plaintiff to have their day in court under the Gross
standard. But make no mistake, the Gross standard is much
higher.
And I will just--I don't want to take your time, but the
Second and the 10th Circuit addressed that specifically and
said before the Supreme Court in Gross the employer could
prevail if age--if it was at least motivated in part by age.
After Gross, they can no longer do that. And every circuit that
has addressed that has made it clear that after Gross there is
a higher standard. There is a higher standard to prove age
discrimination than there is to prove race discrimination, sex
discrimination.
And that is the concern and why the bill is drafted in what
you believe is a broader language. Because if you don't fix it,
it will be litigated until the cows come home to determine how
far Gross goes.
Mrs. McCarthy. With a follow-up on that, with the
legislation that the majority on the Education Committee have
introduced, do you see that correcting the problems that the
Supreme Court put forward to us to correct it? Do you see that
that piece of legislation will correct everything that we are
trying to do?
Mr. Foreman. Yes, it directly addresses that. And the only
outlier is the need to have the broader language to cover all
discrimination laws so we don't have continuing litigation. But
what it does is it says, motivating factor applies to any law;
number two, that if employers can prove that they would have
done this even though they took into account age, they will
have a limitation on damages; three, that any type of evidence
can be used to prove these cases. So it actually answers the
question that was presented in Gross and not answered by the
Supreme Court.
So it directly addresses that. And I don't want to be in a
situation to try to remind, but it is patterned after the 1991
law, which Congress passed I believe it was 300 and some to 40
or 50. Don't quote me on that exactly, but it was fairly--and
the Congress, 90 to a very few people, that it passed with
overwhelming support. And what it does is take the 1991 law
that applies to race and Title VII and applies it in the age
context.
Mrs. McCarthy. Thank you.
Mr. Gross, I want to thank you for persevering even though
you lost the case. I think this is something that we consider a
moral victory for you because you are going to be helping many
people behind you. As you have mentioned, certainly quite a few
of us are the baby boomers now, and so we want to do whatever
we can to protect not only the future but, certainly, all my
friends that are working right now. And I think that is an
important thing, so I thank you.
I yield back, Mr. Chairman.
Chairman Andrews. I thank the gentlelady.
The chair recognizes the gentleman from Massachusetts, Mr.
Tierney, for 5 minutes.
Mr. Tierney. I thank the chair.
I won't take the 5 minutes except to say that I think this
has been a good hearing. I appreciate the witnesses that were
selected and their contributions to it.
Mr. Gross, I appreciate your circumstances and your
willingness to come forward, as well.
I get pretty much what is going on here. And having dealt
in this area for a number of years before coming to Congress, I
don't think I need to ask any more questions. But I appreciate
the fact that you have had this hearing.
I will yield to the----
Chairman Andrews. Would the gentleman yield?
I wanted to ask Mr. Gross a question. And if your judgment
is that you don't want to answer it because your case is still
pending, please take that prerogative. But did anyone ever say
to you from your employer that you were demoted because of your
age?
Mr. Gross. No.
Chairman Andrews. Did any of your fellow employees ever
tell you that they were told they were demoted because of their
age?
Mr. Gross. No, not specifically.
Chairman Andrews. Did anyone ever give you a letter or e-
mail or written communication that suggested that people were
being demoted because of their age?
Mr. Gross. I had received access to a memo that had been
written a year before identifying people who they intended to
demote. There was a big argument over whether I should have had
that or not.
Chairman Andrews. No, I understand.
Mr. Gross. But it did identify every person who was going
to be demoted. And every person on that memo was over 50. That
jumped off the page at us. It wasn't quite a smoking gun, but
we thought it was----
Chairman Andrews. What led you to believe that you were
being demoted because of your age? Why did you think that?
Mr. Gross. Because, number one, when they merged with
Kansas, they virtually purged everybody over 50 before they
brought them into the organization. And, at the same time,
every single person over 50 at our organization who was
supervisory and above was demoted, all at the same time,
totally regardless of performance, past contributions, current
contributions. The only common denominator was our age.
Chairman Andrews. Was there anybody under 50 demoted?
Mr. Gross. One. But that person was, I believe, 48 at the
time and----
Chairman Andrews. Almost as good, huh?
Mr. Gross. Yeah. And that was the only person under 50 who
was demoted.
Chairman Andrews. Okay.
The chair recognizes the gentlelady from--oh, I am sorry,
Ms. Aldrich.
Ms. Aldrich. I just wanted to add that this is a specific
situation but that our AARP studies show that 60 percent of 45-
to 74-year-olds believe that they have either experienced or
seen age discrimination in the workplace. I just think that is
a, kind of, overwhelming statistic. And that was pre-recession.
Chairman Andrews. Thank you.
The chair recognizes the gentlelady from Ohio, Ms. Fudge--
is she here?
Okay. The chair recognizes the gentleman from Illinois, Mr.
Hare, for 5 minutes.
Mr. Hare. Thank you, Mr. Chairman.
And, for the record, you can represent me any time.
Hopefully, it won't be a bad one, but--yeah.
Mr. Dreiband, you state in your testimony that ``this
legislation will give, at best, a moral victory to workers.'' I
am a little baffled by the reasoning and clearly understand
that this is based on your belief, and I quote, that ``the law
will force these individuals and entities to spend years or
decades fighting in court.'' So I am unclear as to what exactly
you are missing here.
But let me ask you this simple question, if I might. Would
the clients that you advocate for avoid emptying their bank
accounts even, you know, if they simply avoided any act that
could be interpreted even in the slightest as discrimination?
And would that make your whole argument about emptying the bank
accounts disappear?
Mr. Dreiband. I am not sure I fully understand the
question. In terms of the concern about emptying bank accounts,
the concern is the fact that the bill does not list the laws
that Congress intends to amend. And, as a result, both
discrimination victims--employers, unions, and others--who find
themselves embroiled in these disputes will have to spend time
and money and resources fighting in court on that question,
when Congress could easily clarify it by amending the bill.
Mr. Hare. Uh-huh.
If I could, Mr. Foreman, I noticed that when my friend from
Georgia was asking Mr. Dreiband a question about these cases in
the different circuits, your head was shaking, you know, ``No,
no, no, no, no.'' I was wondering if you would like to respond
to what Mr. Dreiband was saying. You didn't get a chance to, so
this would be an opportunity, if you wouldn't mind doing that.
You clearly had a difference of opinion there.
Mr. Foreman. Yes, thank you. And I was shaking my head
because I may have already indicated that the cases he is
relying on are simply citing the Gross opinion. The Gross
opinion is the law of the country now. It is not saying
anything different than: Gross now applies.
As I indicated, most of those cases are dealing with this
issue of--the Supreme Court dropped the footnote in their
opinion that said, we are not making a determinative statement
whether McDonnell Douglas, the standard by which you prove
discrimination cases in one sense, applies. And it applied for
decades, literally decades. But they dropped this footnote;
they don't answer it.
And many of the Court of Appeals are saying, the Supreme
Court said this about McDonnell Douglas, we think it still does
apply, so we will send it back down. We will let the plaintiff
have their day in court, but, again, to prove but for
causation, not motivating factor.
And one important thing that I think we all need to focus
on is the motivating factor. The way the law was written in
1991 and the way this law is written, all it is doing is
saying, if an employer considers this, if it is a motivating
factor, you violated the law. We will then shift the burden of
proof to the employer to prove that they would have taken this
action anyhow. So there is a shift of the burden of proof,
which is very important litigation.
Under the Gross standard--and they make it very clear--the
burden of proof never shifts to the employer. It is always the
plaintiff's burden. And that is the reason we continually come
back to the point that it has raised the level of proof for
plaintiffs, or it eliminates one way of proving discrimination
in the age context.
Mr. Hare. Okay.
Mr. Gross, let me just, you know, thank you for doing what
you did. I know that that had to be difficult for you and your
family. And, you know, I am sorry you didn't prevail, but, you
know, we will get this through and you will eventually. I
believe you will.
I wanted to ask you just one quick question. After you
filed the suit, how did your employer treat you?
Mr. Gross. I was essentially ostracized. I stayed with them
for 7 more years and endured what I felt was pretty intense
retaliation.
Mr. Hare. Such as?
Mr. Gross. Well, I had been integrally involved in a lot of
operations, on several corporate committees. I had actually
been on the defense side defending Farm Bureau because I was a
claims executive, and I think I was considered somewhat of a
turncoat. And now I think they wanted to make an example out of
me.
I was immediately taken off all communications. My access
to any of the computer programs, software was eliminated. I was
not included in any department correspondence. I was basically
set aside and ignored. I knew that my friends were endangered
if they were seen talking to me, so I told them, ``Cover
yourselves. I will eat lunch by myself now instead of at the
big table.''
Mr. Hare. And you did that for 7 additional years?
Mr. Gross. I complained every year to human resources about
being given nothing to do and that I felt that it was
retaliation. I got no response until the last couple of years.
And then they finally started giving me some light clerical
work to do, which consisted primarily of taking numbers from
one report and putting them onto another report.
I think they wanted to make my life miserable enough----
Mr. Hare. Sounds like they did.
Mr. Gross [continuing]. That I would walk away, and I
didn't want to give them that satisfaction.
Mr. Hare. Well, thank you, Mr. Gross.
I yield back.
Chairman Andrews. Thank you.
The chair recognizes the gentleman from Iowa, Mr. Loebsack,
for 5 minutes.
Mr. Loebsack. Thank you, Mr. Chair.
I do want to thank Mr. Gross for taking the time to be here
today. A native of Iowa, obviously, my home State, in Des
Moines. It is really good to see you here. We don't have a lot
of Iowans come in here and testify, so I really appreciate
seeing you here today.
I think it is very good, too, that we are holding this
hearing, especially at the beginning of Older Americans Month.
Just a little bit about Iowa and our home State. We rank
about fourth highest in the percentage of population age 65 and
older around the country. And according to census data, this
legislation would apply to about 40 percent--40 percent--of my
State's population, potentially. So that is pretty significant.
I don't know how the States compare, but that is very, very
important, as far as I am concerned.
I was going to ask you about how you were treated, but my
good friend Phil Hare preempted me on that. But did you want to
elaborate at all? You gave us a pretty, I think, pretty
stunning response as far as what happened to you.
Mr. Gross. Well, I did finally last December--it was
stressful, obviously, and I was starting to have some health
problems that were resulting from it. And my wife and I--in
fact, I went to a stress counselor, and we went through, you
know, ``Really, why are you doing this? Is it a life-and-death
matter for you?'' And I said, ``No, but I just don't like to
walk away from a fight, I guess.'' And he said, ``Well, you
really need to ask yourself if shortening your life is worth
continuing the fight.''
And that made a lot of sense. And so, as of December, I did
go ahead and retire, 4 years earlier than I had intended. I had
thoroughly intended my entire career to go to age 65 or 66 to
maximize my Social Security.
I think there is a lot of anecdotal evidence, a lot of
people I know who are also drawing Social Security much earlier
than they intended because they are in similar situations. And
I could give you anecdote after anecdote of my personal
experiences and acquaintances that have undergone this type of
thing. But it is becoming rampant out there, and I think you
are probably hearing that back in the field, back in your own
districts.
Mr. Loebsack. And that alone is cause for tremendous
concern, obviously, when there is that retaliation and coercion
on the part of an employer. And I am very sorry that that
happened, obviously, to you.
I have a question which maybe goes to Mr. Foreman more than
anyone, but anyone can respond. Given Mr. Gross's situation as
an example, can you give us an idea of what information would
have to be provided to prove discrimination under the Supreme
Court's ruling compared to what information you had to provide
previously under Congress's original intent of ADA protections?
If you would like to respond to that, Mr. Gross, or maybe
Mr. Foreman or Ms. Aldrich.
Mr. Foreman. I think the Court, the majority in Gross made
it very clear that it must be but for causation, which is a
very high level. So you are really looking for a smoking-gun
comment that in corporate America you do not see.
There was one question whether it was a sole cause
determination. I think an accurate reading of the Supreme
Court's decision is that it is not sole cause. But there are
several district courts that have interpreted it exactly in
that manner, to say, for instance, if I allege age and race
discrimination, while that is a mixed motive, therefore my age
case fails. And it is thrown out on a motion to dismiss because
you have alleged another classification.
So, again, it goes back to how this is causing confusion in
the court. In the bill, is it trying to get us back to step one
and say, let's all work off the same standard?
Mr. Loebsack. Uh-huh.
Ms. Aldrich. I would like to respond to that.
Mr. Loebsack. Yeah, please.
Ms. Aldrich. I would like to say, just from my
perspective----
Chairman Andrews. Please put your microphone on, Ms.
Aldrich.
Ms. Aldrich [continuing]. It is a tougher standard than for
other cases of discrimination.
And it is very concerning, you know, for most older
workers--and we have heard Mr. Gross--to even bring these cases
forward, with the amount of emotional stress it causes, the
difficulty of standing up around other coworkers and
challenging the company, the expense of it.
So I think to make it more difficult for older workers than
for other cases of discrimination is just wrong.
Mr. Loebsack. All right.
And, Ms. Aldrich, one last question. Since this ruling, do
you have any idea how many discrimination claims are out there
that would have met the previous intent of protection but would
now be nearly impossible to prove because of the stricter
ruling? Any idea?
Ms. Aldrich. I am not sure about that. But I do know that,
in the last 2 years, in 2008 and 2009, there have been 45,000
age discrimination cases filed with the EEOC, which is more
than any other period of time since we have kept track of it.
So my sense is that, given the really tough economic times,
that there are lots of concerns about age discrimination, and
now they are harder to prove.
Mr. Loebsack. All right. Okay.
Thank you, Mr. Chair.
And thank you again, Mr. Gross. I really appreciate your
being here. Thanks.
Chairman Andrews. I thank the ladies and gentlemen of the
panel, and we really appreciate your testimony. I know everyone
prepared very diligently and I think did a good job educating
the committee.
At this point, I would turn to the senior Republican for
any closing comments he would like to make.
Dr. Price?
Mr. Price. Thank you, Mr. Chairman.
And I, too, want to echo your comments thanking every
member of the panel. This has really been a fascinating
hearing, and I appreciate your participation and the expertise
that you bring to bear.
None of us are in favor of age discrimination, clearly. The
question is, how do we get it right and not open Pandora's Box
and have things result in just an onslaught of litigation as
opposed to actually solving the challenge here?
So I am hopeful that--I think there is a common thread
between the two sides. And I am hopeful, Mr. Chairman, that we
will be able to work together and come up with a commonsense
piece of legislation that actually solves a problem and a
challenge out there together.
Thank you.
Chairman Andrews. I thank my friend.
I would again like to thank the members of the committee.
Without objection, all Members will have 14 days to submit
additional materials for the hearing record.
Were there any other materials you wanted to submit now?
Mr. Price. No.
Chairman Andrews. Okay.
I want to thank each of the witnesses for a very
constructive contribution today.
Mr. Dreiband, I agree with you that ambiguity about which
laws the standard that is in the bill would apply to would not
be helpful. And I think that your comments were on point as to
the way we could sharpen this legislation up and not create
ambiguity. I think that is a very important point.
Mr. Foreman, I think that your reading of the distribution
of the burden of persuasion is the correct one. It is why we
are in front of the Congress with this bill.
Ms. Aldrich, I think you have given us some context to
understand this, that age discrimination is always invidious,
but it is particularly acute at a time when there is a
recession and people are losing their jobs in large number. It
really has a devastating effect on the lives of real people.
And, Mr. Gross, unfortunately, you are Exhibit A of that. I
doubt very much that Mr. Gross, whose uncle--is it your uncle
was the congressman?
Mr. Gross. Great uncle.
Chairman Andrews [continuing]. Great uncle served with
great distinction in this body a long time ago, I doubt very
much that Mr. Gross thought he would be testifying before a
congressional committee all those years when he was doing the
work that he was doing so well. And it is a twist in the law
that has brought him here that I hope that we can correct.
I would echo what Dr. Price said. I don't think there is a
member of this committee who wants to perpetuate discrimination
against any person based upon age or any other factor.
One of the things that I learned in law school, maybe the
only thing I learned, was: He or she who has the burden of
proof usually loses. And I think it is acutely true in this
kind of situation where, if you can make a circumstantial case,
as I think Mr. Gross has definitively done, that there is a
pattern of discrimination against a person based on age, it is
very difficult to take the next step and carry the burden that
says that that is not just circumstantial and coincidental. It
is very difficult because employers are aware of the
environment in which they are operating; they are counseled
about how to say things carefully. I am not suggesting they are
doing anything nefarious, but it is a very difficult burden to
carry. And I think, frankly, it is a burden that will not be
carried very often or very easily, which will have the effect
of expanding an invidious practice that we really want to
diminish.
So the committee is going to consider the testimony. We
would welcome further comments on the record. We will move
forward as we look at these issues. And, again, I very much
appreciate everyone's participation here today.
With that, the hearing is adjourned.
[Additional submission of Mr. Andrews follows:]

Prepared Statement of the National Senior Citizens Law Center

The National Senior Citizens Law Center (NSCLC) submits this
statement in support of the Protecting Older Workers Against
Discrimination Act. NSCLC submits the statement to the House Health,
Employment, Labor, and Pensions Subcommittee of the Education and Labor
Committee, which convenes a hearing on H.R. 3721, the House version of
the bill, on May 5, 2010, and to the Senate HELP Committee, which
convenes a hearing on S. 1756, the Senate version, on May 6. The
legislation will override a June 2009 Supreme Court decision that
stripped older workers of vital protections against bias on which they
had relied for over 40 years. In this decision, which the dissenting
justices characterized as ``unabashed judicial law-making,''
``irresponsible,'' and in ``utter disregard'' of the Court's own
precedents and ``Congressional intent,'' a narrow 5-4 majority so
weakened the 1967 Age Discrimination in Employment Act (ADEA), that
employers are left with little incentive to comply with its equal
opportunity mandate. This decision illustrates the accuracy of
President Obama's recent observation that we ``are now seeing a
conservative jurisprudence'' that is both ``activist'' and bent on
gutting laws that, like the ADEA, were enacted to protect ordinary
people.
The Gross Decision Upended a Fair Jury Verdict and Long-Settled Law
This case arose out of circumstances all too familiar to older
workers at all levels in our economy, especially in the hard times from
which much of the nation has barely begun to recover. In 2003, Jack
Gross, aged 54 and a 32-year employee of FBL Financial, was demoted
from his position as claims administration director, and transferred to
a newly created position with drastically reduced responsibilities.
Gross sued, and at trial introduced ``evidence suggesting that his
reassignment was based at least in part on his age'' (as stated by
Justice Clarence Thomas writing for the majority). Gross' employer
responded with the claim that the reassignment was part of a
``corporate restructuring.'' The jury found for Gross and awarded him
$46,945 in lost compensation, after receiving the judge's instructions
that they must rule for the employee if he proved by a preponderance of
the evidence that ``age was a motivating factor'' in his demotion.
``However,'' the judge instructed, the jury must rule for the employer
if the employer proves by the preponderance of the evidence that the
employer would have demoted Gross ``regardless of his age.'' This
instruction tracked settled law, but the Supreme Court majority changed
the law, as described above, and held that Gross and others in his
situation needed to show that age was the ``but for'' cause of their
adverse treatment, and that evidence that age was a motivating factor
would not shift the burden of proof to the employer to prove that the
adverse action would have occurred regardless of the employee's age.
A Perfect Storm for Older Workers
After the Supreme Court bounced him back to square one, Mr. Gross
testified before Congress that the conservative Justices had
``hijacked'' his case to make an ideological point. His view cannot be
dismissed as sour grapes. On the contrary, this 5-4 reversal of the
jury verdict in Mr. Gross' favor creates a veritable perfect storm for
older workers. Numerous surveys show that the current financial crisis
has forced older workers at all economic levels to shelve plans for
retirement, and attempt to stay in, or re-enter the job market. One
survey, published in March 2009, reported that 60 percent of workers
over 60 have made that decision. 75 percent of the $2.8 trillion that
vanished from group (401[k]) and individual (IRA) account assets during
late 2007 and 2008 belonged to persons over 50. In addition to the
disproportionate impact of this implosion of retirement assets,
declining house values and rising health costs have seriously
exacerbated the financial squeeze on older workers, and intensified
pressure to continue to work.
Or hope to. When recession strikes, employers often target veteran
employees in RIFs, and disfavor older candidates for whatever new
positions they may need to fill. Driving this pattern, familiar, as
Purdue University management expert Professor Michael Campion testified
at a July 15 Equal Employment Opportunity Commission (EEOC) hearing,
are ``common negative stereotypes about older workers,'' such as that
they are ``more costly, harder to train, less adaptable, less
motivated, less flexible, more resistant to change, perhaps less
competent, and less energetic than younger employees.'' Such cliches
are often inaccurate, as superior experience, maturity, stability, and
job commitment may often make more senior workers more productive and
better investments than their younger counterparts. Although the ADEA
was enacted to eliminate such damaging misperceptions from American
workplaces, studies document their resilience. Evidently, their impact
is being felt in the market-place now. Age discrimination claims
submitted to the EEOC spiked nearly 30% in June 2009 compared with the
same month a year earlier.
How the Gross Decision Largely Nullifies the ADEA
For these claimants, the Supreme Court's decision offers a new
Catch-22. The aptly named decision guarantees that a vast proportion of
age bias complaints will fail, whatever their merit. Justice Clarence
Thomas' opinion for the Court majority repeatedly states that a victim
of age discrimination, in order to prevail in court, must prove that
unlawful bias was the ``but-for'' cause of adverse treatment.
Previously, plaintiffs alleging violations of the Age ADEA had the
option of proving that age bias was simply a ``motivating factor.'' The
latter remains the applicable standard for claims of discrimination
based arising under Title VII of the Civil Rights Act, which include
most matters involving race, gender, or other types of workplace
discrimination other than age.
Federal lower court decisions confirm that Gross has radically
tightened standards for proving workplace age discrimination, to an
extent that, if not promptly corrected by Congress, will cause a vast
proportion of age bias complaints to fail, whatever their merit.
Justice Clarence Thomas' opinion for the 5-4 Court majority repeatedly
states that a victim of age discrimination, in order to prevail in
court, must prove that unlawful bias was ``the but-for'' cause of
adverse treatment. Previously, plaintiffs alleging ADEA violations had
the option of proving that age bias was simply a ``motivating factor.''
The latter remains the applicable standard for claims of discrimination
arising under Title VII of the Civil Rights Act, which include most
matters involving race, gender, or other types of workplace
discrimination other than age.
The Court's new rule will largely nullify the ADEA. This is true,
in the first place, because in the real world, most actions have
several but-for causes. For example, if an employer decided to fire
everyone in a Department over 50, age would be a but-for cause (because
if a worker were not over 50 he or she would not have been fired). But
working in that Department would also be a but-for cause (because if a
worker of any age had not been in that Department, he or she would not
have been fired). If victims of this garden-variety type of
discrimination must show that age was ``the'' but-for cause, their
cases will be lost before they are filed. Indeed, Justice Thomas' ``the
but-for cause'' standard can be interpreted to require that age bias be
the ``sole'' cause of adverse treatment. In fact, in the first three
months after Gross was decided, at least 27 federal courts read the
decision to impose this ``sole cause'' standard or its practical
equivalent.
Moreover, even in situations where in fact age bias is the sole
cause of passing over for promotion, or demoting, or firing an
employee, that fact will rarely be demonstrable. After all, as a
practical matter, employers will always create paper trails purporting
to justify adverse actions on legitimate business-related grounds. In
such circumstances, proving that age was the exclusive, rather than a
``motivating'' factor will not realistically be possible. Virtually any
evidence of any other factors, whether business-related or not,
suffices to throw a legitimate age discrimination victim out of court.
Employee-side lawyers will know that, so they will rarely waste their
time and resources to bring cases when age bias victims come to them
for help. Business lawyers will also know that, and will counsel
clients that they have nothing to fear if they pay lip-service to the
ADEA but ignore it in practice.
Twisting a Law Enacted to Protect Ordinary People
As noted above, President Obama recently underscored the need for
judges who combine ``a fierce dedication to the rule of law'' with ``a
keen understanding of how the law affects the daily lives of the
American people.'' The President has observed that in contrast with
this standard, we ``are now seeing a conservative jurisprudence'' that
is ``activist'' and ``ignores the will of Congress'' and ``democratic
processes.'' Members of Congress, including Senate Judiciary Committee
Chair Patrick Leahy, have similarly observed that ``in many cases, the
Supreme Court has ignored the intent of Congress, oftentimes turning
laws on their heads, and making them protections for big business
rather than for ordinary citizens.'' Few recent decisions illustrate
the regrettable accuracy of these observations more precisely than the
Gross decision. Not only, as Justice Stevens observed in his dissenting
opinion, does this 5-4 decision flout a long-standing major precedent
of the Court itself (Price Waterhouse v. Hopkins, 490 U.S. 228 [1989]),
by adopting as the law a ``but-for'' standard of causation that was
advanced by the dissent in that case. ``Not only,'' Justice Stevens
wrote, ``did the Court reject the but-for standard in that case, but so
too did Congress when it amended Title VII (of the 1964 Civil Rights
Act) in 1991.'' Moreover, the majority's ``far-reaching'' new rule
answered a question completely different from the one the parties had
raised with the Court or the courts below and which the Court ``granted
certiorari to decide.'' Justice Stevens called out the majority further
for its lack of concern that the consequential issue it resolved ``had
not been briefed by the parties,'' adding that the majority's ``failure
to consider the views of the United States, which represents the agency
charged with administering the ADEA, is especially irresponsible.''
Repealing From the Bench and Crippling Congress
Congress needs to respond sharply and swiftly to the Court's de
facto repeal from the bench of the ADEA and other safeguards against
workplace discrimination. Not only does the decision in Gross thwart
Congress' clear intent. If permitted to stand, the decision will
cripple Congress' ability to perform its constitutional function. This
is because the Gross majority utilized a novel and ill-considered
method of statutory construction that would, if generally applied, lead
to wholly unreasonable interpretations of numerous federal laws. The
Court reasoned that because Congress in 1991 codified and strengthened
the interpretation of Title VII found in Price Waterhouse, Congress
intended by so doing to indicate that it actually disapproved of the
basic rule in Price Waterhouse, and that the allocation of burdens set
out in that decision should not be applied to other federal employment
statutes. Under this unwarranted method of construction, legislation
strengthening any one federal law, or merely codifying in that statute
any existing caselaw, would be deemed to weaken all other federal laws
dealing with the same type of issue, e.g. employment. That emphatically
was not the intent of Congress in adopting the 1991 Civil Rights Act.
General application by the courts of this method of construction would
complicate exponentially the already complex task of drafting
legislation. In every instance in which Congress amended any one law,
it would be required to scour the United States Code for all the other
laws which would have to be similarly amended to avoid the implications
of the Gross rule.
Congress needs to act swiftly to prevent further metastasizing of
this threat to the economic security of older Americans and all
Americans.
______

[Whereupon, at 11:50 a.m., the subcommittee was adjourned.]