In a recent survey 10.8 percent or respondents said they had experienced or seen age discrimination within their workplaces in the prior two years. Image: ClareM/Shutterstock.com
By: FEDweek StaffA recently introduced House bill (HR-6581) would broaden the scope of protections against age bias 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 cover federal employees along with many private sector companies.
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, effectively overriding a 2009 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.
If the employer is unable to prove that it would have taken the same action in absence of the impermissible factor, the employee would be entitled to back pay, front pay or reinstatement, liquidated damages if the violation was willful, and injunctive relief.
In the most recent survey of federal employee perceptions of discrimination, reflected in a MSPB report issued a year ago, 10.8 percent said they had experienced or seen age discrimination within their workplaces in the prior two years.
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 14.6 and 12.8 percent, and well above other forms of discrimination. That reflected a consistent pattern in such studies.
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