AARP Urges Congress to Strengthen Age Discrimination Laws

Congress should pass a bill that would improve protections for older adults in the workplace, an AARP official testified at a hearing Tuesday on the Protecting Older Workers Against Discrimination Act (POWADA). The measure would reverse a 2009 U.S. Supreme Court decision that made it more difficult for people to win litigation after facing discrimination because of their age.

"Age discrimination in the workplace remains disturbingly pervasive,” said Laurie McCann, senior attorney for AARP Foundation, at the House Committee on Education and Labor hearing. “Three in five older workers report that they have seen or experienced age discrimination on the job. Discrimination is discrimination, and POWADA would make Congress’ intent clear that no amount of unlawful discrimination in the workplace is acceptable. Congress should pass POWADA as soon as possible."

The federal Age Discrimination in Employment Act (ADEA) protects workers age 40 and older from being forced out of jobs or denied work opportunities because of their age. But in a 2009 ruling (Gross v. FBL Financial Services Inc.), the U.S. Supreme Court said older workers have to prove that their age was a decisive factor in the employer's decision to discipline or fire them, a much higher standard than had been required since the ADEA was enacted in 1967. Previously, it was sufficient to prove age was one of a number factors that played into such a decision. POWADA would amend the ADEA to restore the previous standards. Bipartisan groups of legislators in the House of Representatives and Senate introduced identical POWADA bills in February.

The proposed legislation clearly states that victims of age discrimination do not have to demonstrate that age was a deciding factor for the employer's action in order to prove their case.

Jack Gross, the plaintiff who lost that age discrimination case in 2009, attended the hearing Tuesday. In a separate conversation recorded for an episode of AARP's Take on Today podcast, Gross, who is now 70 and retired, said he is upset that a Supreme Court ruling that is referred to by his name is being used to hurt other older workers.

"This is a little bit about ego for me now,” Gross said. “There are a lot of people who had probably pretty good [age discrimination] cases who would have had their day in court, but they go to an attorney and their attorney says, ‘Well, after the decision in the Gross case, you know, these are so tough to prove we don't want to take anything on a contingency basis like this anymore.’ So, some of them just don't get off the ground, and when they do get there, the Gross v. FBL decision is cited time after time for denying anybody a reasonable chance of winning because the standard of proof has become almost insurmountable."

POWADA is sponsored by Reps. Bobby Scott (D-Va.) and Jim Sensenbrenner (R-Wis.) and Sens. Bob Casey (D-Pa.) and Charles Grassley (R-Iowa).