UPDATE: Jan. 16, 2020: The House of Representatives passed the Protecting Older Workers Against Age Discrimination Act by a 261 to 155 vote Jan. 15.
- The U.S. House of Representatives will vote next week on a bill that would reduce barriers employees face in attempting to prove age-based employment discrimination, according to a statement from the office of House Majority Leader Steny Hoyer, D-M.D.
- H.R. 1230, the Protecting Older Workers Against Discrimination Act, would amend the Age Discrimination in Employment Act (ADEA) to: 1) permit complaining parties to rely on any type or form of evidence in presenting their claims; and 2) clarify that complaining parties are not required to prove that a protected characteristic or activity was the sole cause of an unlawful employment practice.
- The bill rejects the U.S. Supreme Court precedent established in Gross v. FBL Financial Services, in which the court held that a plaintiff bringing an ADEA claim must prove that age was the "but-for" cause of the challenged adverse employment action.
Hoyer's statement signals movement on a piece of legislation that has been described as having bipartisan appeal. Lawmakers introduced H.R. 1230 and its companion bill in the U.S. Senate, S.B. 485, in February 2019, but neither version has yet earned committee approval.
The news also comes amid heightened discussion of age discrimination, or ageism, in the employment context. An investigation published last week by AARP posited that ageism is the "last acceptable bias in America," adding that ageism is "rampant" in hiring, on-the-job and firing situations. But AARP said large employers often tolerate age bias because laws protecting older workers are "decidedly weaker" than other anti-discrimination laws.
In the more than 50 years since Congress passed the ADEA, retirement has changed significantly. Most Americans now say they're likely to work past age 65, and the ADEA has been amended over time to limit the instances in which employers may maintain mandatory retirement policies. But the law's protections also have limits: the 7th U.S. Circuit Court of Appeals ruled last year that some ADEA protections don't apply to external applicants, and the Supreme Court declined to review the ruling months later.
Limits aside, age discrimination allegations can still impact employers. Google opted to pay $11 million in a July 2019 settlement over claims it discriminated against applicants over age 40 in the process of recruiting for three U.S.-based engineering positions, though the company disputed the existence of any intentional age discrimination.
Age discrimination occurs in part because ageism is to some degree tolerated in broader social contexts, experts previously told HR Dive, making it an "open secret" in employment. Language in job applications asking for "digital natives," for example, may send a signal that older candidates need not apply. Good documentation and training may help employers implement standards that avoid ageist practices.