Will Congress Overturn Gross v. FBL Financial Services?
Jeffrey A. Gruen
In October 2009, the Protecting Older Workers Against Discrimination Act (POWADA) was introduced in the Senate
. This Bill was designed to overturn
Gross v. FBL Financial Services, Inc.,
a 2009 U.S. Supreme Court decision in which the Supreme Court heighted the burden for plaintiffs alleging age discrimination under the Age Discrimination in Employment Act (ADEA).
Specifically, following Gross, an ADEA plaintiff must prove that the complained-of conduct would not have occurred but for the employee’s age. However, under the POWADA legislation, an employee could bring a federal age discrimination claim if age was merely a motivating factor in a decision or if an action would not have occurred if it were not for the employee’s age.
While the POWADA has not yet passed through the House and Senate, the Committee on Health, Education, Labor and Pensions heard testimony this Spring from several witnesses about the legislation, including an AARP Board member and the plaintiff from the Supreme Court case. Surprisingly, at these hearings, the EEOC’s former General Counsel testified against the new legislation arguing that it would not advance the public interest.
We will continue to monitor this legislation, which could make it easier, once again, for plaintiff’s to bring federal age discrimination claims.