Congress ponders new discrimination protections for older employees

A bill in the House would boost protections against discrimination of older workers, protections that were weakened by the Supreme Court back in 2009. It is called the Protecting Older Workers Against Age Discrimination Act (POWADA). For specifics, the Federal Drive with Tom Temin talked with Tully Rinckey attorney Michael Fallings.

Interview Transcript: 

Tom Temin Now, this law applies to everyone in the public and private sectors. This proposed bill. Correct?

Michael Fallings Correct.

Tom Temin And in your experience, I mean, what types of discrimination occur against older workers in federal agencies? Because some of them, you know, hang around for a long time and like their careers.

Michael Fallings Well, towards the end of a federal employee’s career or even in the private sector, you’ll see the employers start to push them out, so to speak, where they’ll want these employees to leave the workforce. I’ve seen discrimination in that aspect where in the form of lower performance evaluations, stricter work assignment, the effort to kind of push them out, to increase levels of discipline and to set up that discipline for those older workers.

Tom Temin And this happens in federal agencies.

Michael Fallings Correct.

Tom Temin And let’s review then, what the law was and what happened in 2009 that changed it.

Michael Fallings Sure. So, there’s the Age Discrimination and Employment Act, which applies to federal workers as well. And the standard has been a but for causation standard, meaning that employees to prove age discrimination and employment must prove that age was the But-for cause or was the reason for their termination. Which overturned what was the mixed motive standard of proof, where an employee just has to prove that age was a reason? So, for example, if an employee could show, well, they use my age, my performance may be not sufficient, but my age was a reason as well. That could still be an age discrimination violation. However, under the new standards that were put in place that was not valid. You had to prove age was the reason was the reason, But-for reasons for a violation.

Tom Temin In other words, but for the age of the person, nothing bad would have happened.

Michael Fallings Correct.

Tom Temin And this is what the Supreme Court ruled in the case some years ago.

Michael Fallings Yes.

Tom Temin And did that seem to increase the amount of at least perceived discrimination because the standard did change, as you said?

Michael Fallings Well, I believe it increased actions taken by employers to let go of older employees and using reasons that weren’t really the true reasons, you know, masking it in bad performance or masking it in layoffs or budgetary reasons when really the reason was because of their age. I think I saw an increase in that, you know, in my practice. And because they knew it was harder for an employee to prove that age discrimination.

Tom Temin Right. And so, if there’s a bad performance review in a series of them, it’s pretty hard to say the. But-for because the employer has something well, no, it’s not the age. Here’s the last five performance reviews.

Michael Fallings But-for is a higher standard, and having to prove that But-for versus a mixed motive does make it tougher for an employee, especially when the employer is building that case against the employee for their so-called legitimate reasons to discipline an employee.

Tom Temin We’re speaking with Michael Fallings. He’s an attorney with Tully Rinckey, which represents federal employees. And so, tell us about this new bill. Who’s behind it and what would it do?

Michael Fallings Well, it would go back to the mixed motive standard the new administration has. I think, for the reasons we’ve been discussing, has seen this uptick in employees being removed and, and employers masking the real reasons for the removal, you know, masking the age discrimination behind it when so-called legitimate reasons. So, they want to shift back to the mixed motive standard, which would align with other discrimination statutes and their standards, and what employees can prove?

Tom Temin What other discrimination types of classes would this then resemble if this becomes law?

Michael Fallings Well, under title seven, there’s a mixed motive provisions where employees can prove discrimination based on retaliation or race using that mixed motive standard. And so, the Age Discrimination Act and with this new proposal, would, you know, shift it back to what the title seven standards are or resembling.

Tom Temin What happens if someone is older, or they are in one of those protected classes and their performance really is bad? How does that resolve in general, in your experience?

Michael Fallings Well, I mean, if their performance really is bad, I mean, that’s going to be a reason for an employer to discipline an employee. But I think an employee also needs to be aware of whether or not their performance just becoming bad towards the end of their career. What I often see is an employee has been with this employer for ten, 20 years, you know, doing the same work, and then all of a sudden their performance has just become bad. And maybe it’s because a new supervisor come in, maybe there’s a new policy in place or something like that, but they know their job. So, if that’s the case, and let’s say the supervisor has some legitimate basis behind it. The employee could still consider using reasons of age discrimination and filing allegation to prove that this discipline is wrongful.

Tom Temin All right. And again, who is behind the bill and is there bipartisan support as far as you can tell?

Michael Fallings Yes. From what I see there is bipartisan support.

Tom Temin And should this become law. What do you advise employees to do if they feel like they can sense this kind of discrimination coming on?

Michael Fallings Well, consider filing claims through the available avenues that federal employees or even private sector employees have. Contact local counsel if you need assistance and filing these claims. And yeah, if these actions are being taken, think about whether or not it is because of their age or because, you know, they’ve been with this company or with the government for a lengthy amount of time.

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