Employment Law Report

By Debra H. Dawahare

On October 6, 2009, U.S. House of Representatives Member George Miller of California introduced H.R. 3721, a bill intended to amend the Age Discrimination in Employment Act of 1967 to clarify the appropriate standard of proof in an age discrimination case.  The statute’s proposed title is “Protecting Older Workers Against Discrimination Act” (“POWADA”).  POWADA’s purpose would be to undermine the United States Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009).

In the Gross case, the high court concluded that an age discrimination plaintiff had to establish employer liability according to a “but for” standard, rather than the more lenient “substantial or motivating factor” standard. 

If POWADA becomes law, it would be retroactive to June 17, 2009, the day before the Supreme Court’s decision in Gross.