Earlier this year, the US Senate introduced a bill, S.485, Protecting Older Workers Against Discrimination Act (POWADA). This bill amends the Federal Statute, the Age Discrimination in Employment Act (ADEA) of 1967 which would make it easier for age discrimination plaintiffs to prevail in lawsuits brought under the ADEA. This bill’s intent is to establish that it is an unlawful employment discrimination practice when the plaintiff demonstrates that age or participation in investigations, proceedings, or litigation under such Act was a motivating factor for any unlawful employer’s action, even if factors other than the age, or participation in investigations etc., also motivated the employer’s action against the employee. This Bill would allow what are commonly known as "mixed motive" analysis age discrimination claims.
S.485 further would make it easier for age discrimination plaintiffs to prevail under the ADEA by applying an analytical legal construction similar to that which is utilized in claims brought under other discrimination statutes:
- permitting an age discrimination plaintiff to rely on any type or form of admissible evidence, which need only be sufficient for a reasonable trier of fact (the jury) to find that an unlawful practice occurred; and
- declares that an age discrimination plaintiff shall not be required to demonstrate that age or retaliation was the only cause of the employment decision, such as termination, decreased hours, or demotion etc. This mandate would reject the Supreme Court's 2009 decision in Gross v. FBL Financial Services, Inc., which required an age discrimination plaintiff to prove that age was the "but-for" cause for the employer's decision.
The "mixed motive" analysis is known in discrimination law as the Price Waterhouse test because its analysis of the proof required is under a "mixed motive" analysis originating from the Supreme Court’s opinion in the case of Price Waterhouse v. Hopkins. The bill applies the same standard of proof for age discrimination claims as other statutes addressing other employment discrimination and retaliation claims, including claims under the Americans With Disabilities Act of 1990, the Civil Rights Act of 1964, and the Rehabilitation Act of 1973.
However, in New Jersey, if an age discrimination employee brings the claims under the New Jersey Law Against Discrimination, she/he may already bring the claim under a mixed motive theory if there is some direct evidence of age discrimination. Some of the types of direct evidence could be witness statements that the employer made ageist jokes or uttered nuances revealing an age bias, such as that the employer was seeking, "fresh faces" or that the company needed some "new blood". Other such evidence could be writings or emails, that person who made employment decision considered age as a factor to be considered.
We all age.
What You Can Do
I am an aggressive and compassionate employment law attorney who is successful in bringing age discrimination lawsuits and recovering money for workers who were subjected to age discrimination. I have successfully represented sexagenarians, septuagenarians, and octogenarians who were employees of public entities and private employers, who did not have their contract for employment renewed because of their employer's age bias and was successful in obtaining monetary compensation for them.
If you are being subjected to such unlawful workplace age discrimination, contact Hope A. Lang, Attorney at Law today for a free consultation.
New Jersey employment attorney, Hope A. Lang, Attorney at Law serves clients throughout the state, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Southern, Central, Western and Northern NJ to meet with clients.