EEOC Chair Testifies Before Senate Committee

U.S. Equal Employment Opportunity Commission
EEOC Chair Jacqueline A. Berrien testified May 6 before the Senate Committee on Health, Education, Labor and Pensions about "Ensuring Fairness for Older Workers."

Statement OfJacqueline A. Berrien, ChairU.S. Equal Employment Opportunity CommissionBefore theCommittee On Health, Education, Labor And PensionsUnited States Senate
MAY 6, 2010

Introduction
Mr. Chairman, Ranking Member Enzi and distinguished members of the Committee, thank you for the opportunity to appear before you at this important hearing to discuss the “Protecting Older Workers Against Discrimination Act” (S. 1756), which would supersede the Supreme Court’s 2009 decision in Gross v. FBL Financial Services.[1]
The Supreme Court in Gross held that “mixed-motives” claims are not cognizable under the Age Discrimination in Employment Act of 1967 (ADEA), and that older workers cannot prevail on a claim of age discrimination unless they prove that age was the “but for” cause of the employment practice at issue. In practice, this means that an ADEA plaintiff will no longer have a valid claim, and therefore will be entitled to no relief whatsoever – even if a defendant admits that it took an adverse employment action in part because of the plaintiff’s age – unless the plaintiff can show that the defendant would not have made the same decision anyway (i.e., if the employer had not actually taken the victim’s age into account).
The Gross decision was a startling departure from decades of settled precedent developed in federal district and intermediate appellate courts. It erected a new, much higher (and what will often be an insurmountable) legal hurdle for victims of age-based employment decisions. Indeed, recent case law reveals that Gross already is constricting the ability of older workers to vindicate their rights under the ADEA, as well as other anti-discrimination statutes.
The U.S. Equal Employment Opportunity Commission (EEOC or Commission) believes that legislation like S.1756 is needed to restore and bolster the basic protections that applied to ADEA claims pre­-Gross. This would more fully effectuate Congress’s original intent in passing the ADEA – to “promote employment of older persons based on their ability rather than age” and “to prohibit arbitrary age discrimination in employment.”[2]

Full Testimony:http://www.eeoc.gov/eeoc/events/berrien_protecting_older_workers.cfm