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Bill
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H.R. 1230 — what changed

Protecting Older Workers Against Discrimination Act

From Introduced in House to Reported in House. 3 sections amended between Introduced in House and Reported in House.

Sec. 2 Standards of proof

(a)
added Age discrimination in employment Act of 1967—
(1)
added Clarifying prohibition against impermissible consideration of age in employment practices— Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is amended by inserting after subsection (f) the following:

added “(g)

added “(1) Except as otherwise provided in this Act, an unlawful practice is established under this Act when the complaining party demonstrates that age or an activity protected by subsection (d) was a motivating factor for any practice, even though other factors also motivated the practice.

added “(2) In establishing an unlawful practice under this Act, including under paragraph (1) or by any other method of proof, a complaining party—

added “(A) may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that an unlawful practice occurred under this Act; and

added “(B) shall not be required to demonstrate that age or an activity protected by subsection (d) was the sole cause of a practice.”

(a)
removed Findings— Congress finds the following:
(2)
changed Remedies— In enacting section 107 of the Civil Rights Act of 1991 (adding section 703(m) of the Civil Rights Act of 1964), Congress reaffirmed its understanding that unlawful discrimination is often difficult to detect and prove because those who discriminate do not usually admit their discrimination and often try to conceal their true motives. Section 703(m) 7 of the Civil Rights such Act of 1964 expressly approved so-called “mixed motive” claims, providing that an unlawful employment practice (29 U.S.C. 626) is established when a protected characteristic was a motivating factor for any employment practice, even though other factors also motivated the practice.amended—
(A)
added in subsection (b)—
(i)
added in the first sentence, by striking “The” and inserting “(1) The”;
(ii)
added in the third sentence, by striking “Amounts” and inserting the following:

added “(2) Amounts”

(iii)
added in the fifth sentence, by striking “Before” and inserting the following:

added “(4) Before”

(iv)
added by inserting before paragraph (4), as designated by clause (iii) of this subparagraph, the following:

added “(3) On a claim in which an individual demonstrates that age was a motivating factor for any employment practice, under section 4(g)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—

added “(A) may grant declaratory relief, injunctive relief (except as provided in subparagraph (B)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 4(g)(1); and

added “(B) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.”

(B)
added in subsection (c)(1), by striking “Any” and inserting “Subject to subsection (b)(3), any”.
(3)
changed Definitions— Congress enacted amendments to other civil rights statutes, including the Age Discrimination in Employment Act Section 11 of 1967 (referred to in this section as the ADEA), the Americans with Disabilities such Act of 1990, and (29 U.S.C. 630) is amended by adding at the Rehabilitation Act of 1973, but Congress did not expressly amend those statutes to address mixed motive discrimination.end the following:

added “(m) The term demonstrates means meets the burdens of production and persuasion.”

(4)
changed Federal employees— In the case Section 15 of Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), the Supreme Court held that, because Congress did not expressly amend the ADEA to address mixed motive claims, such claims were unavailable under the ADEA, and instead the complainant bears the burden of proving that a protected characteristic or protected activity was the “but for” cause of an unlawful employment practice. This decision has significantly narrowed the scope of protections afforded Act (29 U.S.C. 633a) is amended by adding at the statutes that were not expressly amended in 1991 to address mixed motive claims.end the following:

added “(h) Sections 4(g) and 7(b)(3) shall apply to mixed motive claims (involving practices described in section 4(g)(1)) under this section.”

(b)
added Title VII of the Civil Rights Act of 1964—
(1)
added Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices— Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by striking subsection (m) and inserting the following:

added “(m) Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin or an activity protected by section 704(a) was a motivating factor for any employment practice, even though other factors also motivated the practice.”

(b)
removed Purposes— The purposes of this Act are—
(2)
changed Federal employees— to clarify congressional intent that mixed motive claims shall be available, and that a complaining party need not prove that a protected characteristic or protected activity was the “but for” cause Section 717 of an unlawful employment practice, under such Act (42 U.S.C. 2000e–16) is amended by adding at the ADEA and similar civil rights provisions;end the following:

added “(g) Sections 703(m) and 706(g)(2)(B) shall apply to mixed motive cases (involving practices described in section 703(m)) under this section.”

(c)
added Americans With Disabilities Act of 1990—
(1)
added Definitions— Section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) is amended by adding at the end the following:

added “(11) Demonstrates—The term demonstrates means meets the burdens of production and persuasion.”

(2)
added Clarifying prohibition against impermissible consideration of disability in employment practices— Section 102 of such Act (42 U.S.C. 12112) is amended by adding at the end the following:

added “(e) Proof

added “(1) Establishment—Except as otherwise provided in this Act, a discriminatory practice is established under this Act when the complaining party demonstrates that disability or an activity protected by subsection (a) or (b) of section 503 was a motivating factor for any employment practice, even though other factors also motivated the practice.

added “(2) Demonstration—In establishing a discriminatory practice under paragraph (1) or by any other method of proof, a complaining party—

added “(A) may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that a discriminatory practice occurred under this Act; and

added “(B) shall not be required to demonstrate that disability or an activity protected by subsection (a) or (b) of section 503 was the sole cause of an employment practice.”

(3)
added Certain anti-retaliation claims— Section 503(c) of such Act (42 U.S.C. 12203(c)) is amended—
(A)
added by striking “The remedies” and inserting the following:

added “(1) In general—Except as provided in paragraph (2), the remedies”

(B)
added by adding at the end the following:

added “(2) Certain anti-retaliation claims—Section 107(c) shall apply to claims under section 102(e)(1) with respect to title I.”

(4)
added Remedies— Section 107 of such Act (42 U.S.C. 12117) is amended by adding at the end the following:

added “(c) Discriminatory motivating factor—On a claim in which an individual demonstrates that disability was a motivating factor for any employment practice, under section 102(e)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—

added “(1) may grant declaratory relief, injunctive relief (except as provided in paragraph (2)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 102(e)(1); and

added “(2) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.”

(d)
added Rehabilitation Act of 1973—
(1)
added In general— Sections 501(f), 503(d), and 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 793(d), and 794(d)), are each amended by adding after “title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)” the following: “, including the standards of causation or methods of proof applied under section 102(e) of that Act (42 U.S.C. 12112(e)),”.
(2)
added Federal employees— The amendment made by paragraph (1) to section 501(f) shall be construed to apply to all employees covered by section 501.
(2)
removed to reject the Supreme Court’s reasoning in the Gross decision that Congress’ failure to amend any statute other than title VII of the Civil Rights Act of 1964 (with respect to discrimination claims), in enacting section 107 of the Civil Rights Act of 1991, suggests that Congress intended to disallow mixed motive claims under other statutes; and
(3)
removed to clarify that complaining parties—
(A)
removed may rely on any type or form of admissible evidence to establish their claims of an unlawful employment practice;
(B)
removed are not required to demonstrate that the protected characteristic or activity was the sole cause of the employment practice; and
(C)
removed may demonstrate an unlawful employment practice through any available method of proof or analytical framework.

Sec. 3 Application

added This Act, and the amendments made by this Act, shall apply to all claims pending on or after the date of enactment of this Act.

(a)
removed Age discrimination in employment Act of 1967—
(1)
removed Clarifying prohibition against impermissible consideration of age in employment practices— Section 4 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 623) is amended by inserting after subsection (f) the following:

removed “(g)

removed “(1) Except as otherwise provided in this Act, an unlawful practice is established under this Act when the complaining party demonstrates that age or an activity protected by subsection (d) was a motivating factor for any practice, even though other factors also motivated the practice.

removed “(2) In establishing an unlawful practice under this Act, including under paragraph (1) or by any other method of proof, a complaining party—

removed “(A) may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that an unlawful practice occurred under this Act; and

removed “(B) shall not be required to demonstrate that age or an activity protected by subsection (d) was the sole cause of a practice.”

(2)
removed Remedies— Section 7 of such Act (29 U.S.C. 626) is amended—
(A)
removed in subsection (b)—
(i)
removed in the first sentence, by striking “The” and inserting “(1) The”;
(ii)
removed in the third sentence, by striking “Amounts” and inserting the following:

removed “(2) Amounts”

(iii)
removed in the fifth sentence, by striking “Before” and inserting the following:

removed “(4) Before”

(iv)
removed by inserting before paragraph (4), as designated by clause (iii) of this subparagraph, the following:

removed “(3) On a claim in which an individual demonstrates that age was a motivating factor for any employment practice, under section 4(g)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—

removed “(A) may grant declaratory relief, injunctive relief (except as provided in subparagraph (B)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 4(g)(1); and

removed “(B) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.”

(B)
removed in subsection (c)(1), by striking “Any” and inserting “Subject to subsection (b)(3), any”.
(3)
removed Definitions— Section 11 of such Act (29 U.S.C. 630) is amended by adding at the end the following:

removed “(m) The term demonstrates means meets the burdens of production and persuasion.”

(4)
removed Federal employees— Section 15 of such Act (29 U.S.C. 633a) is amended by adding at the end the following:

removed “(h) Sections 4(g) and 7(b)(3) shall apply to mixed motive claims (involving practices described in section 4(g)(1)) under this section.”

(b)
removed Title VII of the Civil Rights Act of 1964—
(1)
removed Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices— Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by striking subsection (m) and inserting the following:

removed “(m) Except as otherwise provided in this title, an unlawful employment practice is established under this title when the complaining party demonstrates that race, color, religion, sex, or national origin or an activity protected by section 704(a) was a motivating factor for any employment practice, even though other factors also motivated the practice.”

(2)
removed Federal employees— Section 717 of such Act (42 U.S.C. 2000e–16) is amended by adding at the end the following:

removed “(g) Sections 703(m) and 706(g)(2)(B) shall apply to mixed motive cases (involving practices described in section 703(m)) under this section.”

(c)
removed Americans With Disabilities Act of 1990—
(1)
removed Definitions— Section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111) is amended by adding at the end the following:

removed “(11) Demonstrates—The term demonstrates means meets the burdens of production and persuasion.”

(2)
removed Clarifying prohibition against impermissible consideration of disability in employment practices— Section 102 of such Act (42 U.S.C. 12112) is amended by adding at the end the following:

removed “(e) Proof

removed “(1) Establishment—Except as otherwise provided in this Act, a discriminatory practice is established under this Act when the complaining party demonstrates that disability or an activity protected by subsection (a) or (b) of section 503 was a motivating factor for any employment practice, even though other factors also motivated the practice.

removed “(2) Demonstration—In establishing a discriminatory practice under paragraph (1) or by any other method of proof, a complaining party—

removed “(A) may rely on any type or form of admissible evidence and need only produce evidence sufficient for a reasonable trier of fact to find that a discriminatory practice occurred under this Act; and

removed “(B) shall not be required to demonstrate that disability or an activity protected by subsection (a) or (b) of section 503 was the sole cause of an employment practice.”

(3)
removed Certain anti-retaliation claims— Section 503(c) of such Act (42 U.S.C. 12203(c)) is amended—
(A)
removed by striking “The remedies” and inserting the following:

removed “(1) In general—Except as provided in paragraph (2), the remedies”

(B)
removed by adding at the end the following:

removed “(2) Certain anti-retaliation claims—Section 107(c) shall apply to claims under section 102(e)(1) with respect to title I.”

(4)
removed Remedies— Section 107 of such Act (42 U.S.C. 12117) is amended by adding at the end the following:

removed “(c) Discriminatory motivating factor—On a claim in which an individual demonstrates that disability was a motivating factor for any employment practice, under section 102(e)(1), and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court—

removed “(1) may grant declaratory relief, injunctive relief (except as provided in paragraph (2)), and attorney’s fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 102(e)(1); and

removed “(2) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment.”

(d)
removed Rehabilitation Act of 1973—
(1)
removed In general— Sections 501(f), 503(d), and 504(d) of the Rehabilitation Act of 1973 (29 U.S.C. 791(f), 793(d), and 794(d)), are each amended by adding after the words “title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.)” the following: “, including the standards of causation or methods of proof applied under section 102(e) of that Act (42 U.S.C. 12112(e)),”.
(2)
removed Federal employees— The amendment made by paragraph (1) to section 501(f) shall be construed to apply to all employees covered by section 501.

Sec. 4 Severability

changed This If any provision or portion of a provision of this Act, and the amendments an amendment or portion of an amendment made by this Act, shall apply to all claims pending on or after the date application of enactment any provision or portion thereof or amendment or portion thereof to particular persons or circumstances is held invalid or found to be unconstitutional, the remainder of this Act.Act, the amendments made by this Act, or the application of that provision or portion thereof or amendment or portion thereof to other persons or circumstances shall not be affected.