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Congress to SCOTUS: What’s POWADA With You?

On July 30, George Miller, the senior Democratic member of the House Education and Workforce Committee, introduced the Protecting Older Workers Against Discrimination Act, or POWADA, which would restore vital civil rights protections for older workers by reversing the Supreme Court’s 2009 decision in Gross v. FBL Financial. POWADA reestablishes that once a victim shows discrimination was a “motivating factor” behind a decision, the burden is properly on the employer to show it complied with the law.

The Gross decision made it nearly impossible to prove age discrimination by requiring that victims prove that age was not only a factor in an employer’s decision but was the decisive factor (this is also known as “but-for causation” meaning that but-for the age discrimination, the employer would have made a different decision). The Gross decision has had wide-reaching effects: just this year, the Supreme Court applied the higher standard of proof to claims of retaliation in University of Texas Southwestern Medical Center v. Nassar (applying but-for causation test to claims of retaliation under Title VII), and, as in Gross, expressed skepticism at the intelligence of jurors and lower court judges in Vance v. Ball State University (restricting the definition of ‘supervisor’ under Title VII).

Now that that’s out of the way, let’s consider for a moment the great irony of the Supreme Court’s decisions. Namely, that the average age of the justices is almost 68 years old. The median age of all workers is 42.3 years old. As of June 2013, workers over the age of 40 (the age at which you are protected from age discrimination) made up a whopping 54 percent of the labor force! Of course, unlike the majority of people their age, Supreme Court Justices are not subject to the whims of management and are more than capable advocates for themselves, if not others.

Thankfully, at least one justice has not forgotten the people. Dissenting in Nassar and Vance, Justice Ruth Bader Ginsburg stood up for the rights of those impacted by discrimination in employment and called the court out for “failing to acknowledge the realities of the workplace.” The reality is that workers over 40 are, in many cases, required by financial necessity to stay in the workforce longer, but experiencing high rates of unemployment and staying unemployed for longer periods of time.

As Justice Ginsburg stated in Vance, “[t]he ball is once again in Congress' court to correct the error into which this Court has fallen, and to restore the robust protections [that] the Court weakens today.” The introduction of the Protecting Older Workers Against Discrimination Act is step in the right direction and NWLC urges Congress to act quickly to restore the right of all employees to be free from discrimination.

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