On October 6, 2009, legislation was introduced in the House of Representatives and Senate that would reverse the Supreme Court's holding in Gross v. FBL Financial Services, Inc.  In Gross, the Court held that a plaintiff suing for age discrimination under the Age Discrimination in Employment Act ("ADEA") must demonstrate that age was the "but-for" cause of the defendant's adverse employment action against the plaintiff.  The Court's decision in Gross is discussed more fully here:  http://www.kilpatrickstockton.com/publications/legal-alert.aspx?ID=355).   

The Protecting Older Workers Against Discrimination Act would amend the ADEA to clarify that a plaintiff may prevail under the ADEA by demonstrating that age was a motivating factor behind an unlawful employment practice.  The Act would also clarify that a defendant may avoid liability for monetary damages and some forms of injunctive relief by demonstrating that it would have taken the same action against the plaintiff in the absence of the impermissible motivating factor.  According to the Act, its purpose is to ensure that the standard for proving age discrimination under the ADEA is the same as the standard for proving discrimination under Title VII of the Civil Rights Act of 1964.  The Act was introduced in the House of Representatives by Rep. George Miller and in the Senate by Sen. Tom Harkin and Sen. Patrick Leahy.  The House bill is H.R. 3721.  The Senate bill number is not yet available.   The bill has been added to the Watch List.