Retirement & Financial Planning Report

A bill (HR-2062) that recently passed through the House could result in an increase of 5 to 10 percent in the number of age discrimination complaints filed by federal and private sector employees, according to an estimate for Congress.

The Congressional Budget Office projected that increase if the pending measure, which would broaden the scope of protections under the Age Discrimination in Employment Act, along with other laws including the Civil Rights Act, the Americans with Disabilities Act and the Rehabilitation Act—all of which also cover federal employees.

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The bill would revise the evidentiary standard for age discrimination by establishing an unlawful employment practice when the complaining party demonstrates that age or participation in an investigation, proceeding, or litigation related to an age discrimination claim was a motivating factor for an adverse practice, even though other factors also motivated the practice. That would allow so-called “mixed motive” claims.

The bill also would permit the complaining party to rely on any type or form of admissible evidence, which need only be sufficient for a reasonable trier of fact to find that an unlawful practice occurred; and declare that the complaining party is not required to demonstrate that age or retaliation was the sole cause of the employment practice. The impact of the latter would be to override a U.S. Supreme Court ruling requiring a complainant to prove that the employer would not have made the same decision “but-for” age discrimination.

Where age discrimination is shown, but where the employer shows that it would have taken the same action absent the factor of age, the bill would authorize courts to grant declaratory and injunctive relief, but prohibits the court from awarding damages or issuing an order requiring any admission, reinstatement, hiring, promotion, or payment.

In the most recent survey of federal employee perceptions of discrimination, conducted by the MSPB in 2016, 17.6 percent said they had experienced or seen age discrimination within their workplaces in the prior two years. That was up from 11.5 percent in the prior survey conducted six years earlier.

Age discrimination was the third most commonly cited form of discrimination in the federal workplace in that survey, just behind race discrimination and sex discrimination, at 20.6 and 19.9 percent, and well above other forms of discrimination.

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FERS Retirement Guide 2021