Katz, Marshall & Banks senior counsel Carolyn Wheeler was quoted in a Bloomberg Law article, “Lawmakers Want to Make Bias at Work Easier to Prove.”
A bipartisan group of congressional representatives is working to pass the “Protecting Older Workers Against Discrimination Act,” which would lower the standard that victims of age discrimination at work need to clear to prove their case. As it currently stands, courts have applied the stringent “but-for” standard to a number of employment discrimination laws, including the Age Discrimination in Employment Act and Americans with Disabilities Act. This new legislation refers to older workers in its title but would allow plaintiffs to use the “motivating factor” standard to prove age, disability, and retaliation claims. That standard requires a plaintiff to prove only that the prohibited basis was a causal factor in the discriminatory action.
Commenting on a 2012 Supreme Court ruling that applied the but-for framework to Title VII retaliation claims, Ms. Wheeler noted that “the higher standard may push employees to pursue settlement at earlier stages in litigation.”
Whether the bill will pass or not is uncertain. While the current Congress tends to lean in favor of protecting businesses versus protecting workers’ rights, Ms. Wheeler still sees a path to passage – the “effort to have uniformity in all the discrimination statutes is something that should appeal to a lot of constituencies.”
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