Mixed Prospects for POWADA

AARP recently announced its strong support for the Protecting Older Workers Against Discrimination Act. While experts say its passage is unlikely in the near future, discussion around the bill should remind employers to make performance -- not age -- the motivating factor in employment decisions.

Thursday, August 15, 2013
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The group formerly known as the American Association of Retired Persons has come forward to lend its "strong endorsement" to recently reintroduced anti-age discrimination legislation that the organization says has "taken on new urgency" in the wake of a recent Supreme Court decision.

In June, the Supreme Court ruled in the case of University of Texas Southwestern Medical Center v. Nassar, holding that Title VII retaliation claims must be proved according to the traditional principles of "but-for" causation, not the lessened "motivating-factor" test that governs Title VII discrimination claims.

First introduced in 2009, The Protecting Older Workers Against Discrimination Act, sponsored by Senators Tom Harkin, Chuck Grassley and Patrick Leahy, was brought forward again this year. Originally drafted in response to the Supreme Court's 2009 decision in Gross v. FBL Financial Services Inc. -- which held that an employee must prove an adverse action would not have occurred "but for" the employee's age -- the bill aims to combat age discrimination in the workplace.

"Iowa Senators Harkin and Grassley, joined by Chairman Leahy and Rep. Miller, are championing the rights of older workers in sponsoring this crucial legislation," said Nancy LeaMond, AARP executive vice president, in a statement. "Until Congress passes this bill, too many older workers who have been victims of age discrimination will be denied a fair shake in our justice system."

Strong AARP and bipartisan support aside, the bill's chances of becoming law in 2013 are "mixed at best," says Ted Boehm, an Atlanta-based attorney with Fisher & Phillips.

"The Senate and House are still controlled by different parties. In recent years, most of the changes in employment law have occurred at the regulatory level as opposed to the legislative level, and that seems likely to continue," says Boehm, noting that different versions of this legislation have been introduced - but not passed -- each year since '09.

And if POWADA were to see passage -- this year or in the future -- the legislation wouldn't have "a direct impact on the HR function," says Boehm, as it "would not create a new, protected class or a new cause of action, and is not likely to affect the day-to-day duties of HR professionals. Where it would have its biggest impact is in litigation."

Indeed, were POWADA to become law and subsequently lower the burden of proof for plaintiffs, HR leaders would need "to be more certain that personnel decisions are not made on the basis of age" in order to avoid potential age discrimination claims, he says.

While he "[does] not expect it to pass this year," Jack Swetland, the Washington-based government affairs manager with WorldatWork notes that "it's important for HR leaders to be aware that [the bill] is being discussed and considered.

"What the bill does," says Swetland, "is switch the burden of proof in age discrimination claims filed under the Age Discrimination in Employment Act from the employee to the employer. If the bill were to become law, employers would have to prove they fully complied with the [ADEA], and that age was not a factor in the employment decision being considered in court."

The bill's reintroduction should alert HR to the importance of focusing on performance when making such decisions, says Eric Stevens, a Nashville, Tenn.-based attorney with labor and employment law firm Littler Mendelson.

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"Any time bills such as this are introduced, it brings employers' attention back to the fact that they do need to be cognizant, certainly that they're complying with the law, but also measuring standards in terms of performance, not in terms of age."

Doing so may be tricky for employers, says Stevens, noting that the issue of age discrimination can lead into grayer areas than claims involving race, nationality, religion or other protected categories. 

"It's a difficult analysis," he continues. "It may be an age versus productivity issue. That's why it's difficult - but important - for employers to articulate [employee] expectations in a way that doesn't draw in an employee's age. Ensure your motivations are business-focused."

That said, "if a job is physically demanding, it's not disparaging to older employees to say they can't do what they used to do. The ability to continue to perform [the job] may become intertwined with the issue of age."

There are plenty of exceptions, of course, which hammer home the point that age can never be the sole motivating factor in determining an employee's ability to perform, says Stevens.

For instance, he says, "my wife is a nurse, and this morning she showed me an article in a nursing magazine that profiled an 89-year-old RN still very capable of doing her job."  

Ultimately, employers and HR leaders should keep an eye on POWADA, as it would create "a tougher legal standard for employers [compared to current law], and could possibly result in more employment lawsuits over allegations of age discrimination," says Swetland.

"The best defense against these claims," he says, "is to ensure a workplace culture where discrimination of any kind is unacceptable, and to make sure managers are responsible for maintaining thorough records of all employment decisions."

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