Putting The "POW" Back In The Civil Rights Laws

Jack Gross began working for his employer, FBL Financial Group, Inc., in 1971. By 2001, he'd risen to the position of a claims administration director. Yet in 2003, when he was 54 years old, Gross was reassigned to another job, one he considered a demotion. Many of his former job responsibilities were transferred to a newly created position that was given to a younger employee.

Gross sued, claiming age discrimination, a motive prohibited by the Age Discrimination in Employment Act ("ADEA") Applying the standard established in Price Waterhouse v. Hopkins, a Title VII, gender discrimination case, and extended by the courts to the ADEA and other civil rights laws, a federal court instructed a jury that, if Jack Gross had proved, by a preponderance of the evidence, that his reassignment was a demotion and that age was a motivating factor in that decision, he should prevail.

The court's directive is known in the trade as a "mixed motive" instruction. According to the standard established in Price Waterhouse, if illegal discrimination is a motive for an adverse action, the complainant - an employee, in the Gross case -- is entitled to compensation, even if other motives may also have played a role in the defendant's actions. Price Waterhouse also provides that, once a plaintiff proves that a defendant had a prohibited motive for an adverse action, the burden of proof shifts to the defendant, who has to prove that he or she would have acted in the same manner, even without that bad intention.

The jury found for Jack Gross. The Court of Appeals sent the case back to the lower court to resolve a technical question about evidence (more on that later). Ultimately, the case reached the Supreme Court: and that is where the real trouble began.

In June 2009, in a 5-4 decision, delivered by Justice Thomas, the Court held that there was no mixed motive standard available in age discrimination cases. In other words, unless a complaining party could show that "but for" age discrimination, an adverse action would not have been taken, the complaining party could not prevail. Moreover, the majority said, the burden of proof fell entirely on the complainant. Even if discrimination had played a role in an adverse action - even if Jack Gross had indeed been demoted, and the demotion had occurred in part because of age discrimination -- if Gross could not prove that, were it not for his age, the demotion would not have occurred, Gross could not win. In fact, Jack Gross lost.

Jack Gross was not the only loser in Gross. All ADEA complainants were affected by that decision. In a dissent joined by Justices Souter and Ginsberg -- Justice Stevens wrote a separate dissent- Justice Stephen Breyer pointed out the problem. Proving that, "but for" the bad motive, a prohibited action would have been occurred anyway, required that the complaining party speculate as to what might have gone on in the defendant's mind, had circumstances been other than what they were. Because the complainant likely knew less than the defendant about what the defendant was thinking, or might have thought, had the situation been different, the new standard placed the defendant in a strong position to defeat a claim. The plaintiff's position, of course, was weakened - while many employees may be skilled, loyal and ethical, few are mind-readers.

The effect of the Gross decision has been devastating. Employers can easily create negative records to justify termination, thus providing so-called evidence that, even if partly motivated by illegal discrimination, an adverse decision would have been made anyway. So-called restructurings can be engineered to justify the termination of workers who might otherwise have been protected under federal civil rights laws. Yet the bad news for employees was not yet over: a 2013 Supreme Court decision, University of Texas Southwestern Medical Center v. Nassar, extended the devastating Gross rule to virtually all civil rights retaliation claims.

Retaliation claims offer workers key protections against discriminatory conduct, thereby facilitating enforcement of the civil rights laws. Whether the applicable statute is the ADEA, Civil Rights Act of 1964 ("Title VII"), Americans with Disabilities Act ("ADA") or Rehabilitation Act, prior to the Nassar decision, federal courts had applied the Price Waterhouse mixed motive standard in cases in which an employee had alleged retaliation. If an employee could show that he or she had engaged in an activity protected under a civil rights law, and had been retaliated against for doing so, the employee could obtain compensation - regardless of whether the employer may have had additional motives for an adverse action.

Nassar changed that rule. Naiel Nassar, a doctor of Middle Eastern descent, claimed that he'd experienced retaliation by the University of Texas Southwestern Medical Center after complaining of religion and ethnic discrimination. (Such discrimination, Dr. Nassar said, included comments by his superiors such as "Middle Easterners are lazy.") Allegedly because of the discriminatory treatment, Dr. Nasser resigned from his position as a University faculty member, agreeing instead to take another job, as a staff physician at the University hospital. When that offer was withdrawn on a technicality - merely a pretext, Dr. Nasser claimed -- Dr. Nasser sued for constructive discharge and retaliation.

When the case reached the Supreme Court as University of Texas Southwestern Medical Center v. Nassar, the Court once again considered, and rejected, the mixed motive standard; this time, not merely for all age discrimination actions, but for all retaliation claims under Title VII, the ADA, and other civil rights law. Not only could mixed motive verdicts not be obtained in all ADEA cases, but the mixed motive standard was abolished for virtually all retaliation claims, regardless of the statute under which such claims were brought. Everyone, in short - not merely older workers, had to become a mind reader.

Taken together, Gross and Nassar hobble litigants seeking redress for discrimination. Indeed, Gross may have been instrumental in enabling what to many appears to be the mass warehousing - a/k/a, forced retirement -- of the baby-boomer generation. As recently reported in the New York Times, even when they find jobs, older workers - as young as those in their fifties -- often cannot find positions commensurate with their skills and experience. (ww.nytimes.com/2016/08/18/upshot/as-more-older-people-seek-work-they-are-put-into-old-person-jobs.html.) Such workers are, in effect, being demoted by workplace practices. Removing the mixed motive standard from all ADEA case, and from retaliation cases under virtually all civil rights laws, greatly increases the ability of unscrupulous employers to game the system. The result for middle-class Americans has been more lay-offs, more outsourcing, an increase in part-time rather than full-time employment, real wage stagnation, and a general, pervasive anxiety about their future security.

That is why Gross and Nassar must be overruled by Congress.

In fact, overruling Gross- and, in recent attempts, both Gross and Nassar -- is exactly what Congress has been trying unsuccessfully to accomplish, unsuccessfully, for over five years. The first effort, a bi-partisan bill introduced in the Senate in 2011 called the Protecting Older Workers Against Discrimination Act, or POWADA, would have overruled the Gross standard, restoring the mixed motive to ADEA cases. That bill died in committee, as did similar bills, also called the POWADA, that were subsequently proposed.

In October 2015, Mark Kirk, the junior Republican Senator from Illinois, reintroduced the POWADA (S-2080) this time with provisions that would overrule both Gross and Nassar. That bill was also referred to committee - to Senate Health, Education, Labor, and Pensions Committee -- where, apparently, it still sits, idling.

Most recently, in June 2016, Representative Robert Scott, a Democrat representing the 3rd Congressional District of Virginia, introduced the POWADA - HR-5574 - in the House of Representatives. What has happened? You guessed it: the bill was referred to a congressional committee. Govtrack.us, an independently-owned web site that tracks proposed legislation, gives the POWADA a mere 3% chance of getting past the House committee, and a paltry 2% chance of becoming law.

The POWADA would put the "POW" - i.e., the punch- back into the ADEA, Title VII, ADA, and other laws weakened by Gross and Nassar. It would allow a mixed motive standard to be applied in ADEA cases, and also permit the complainant to state a claim based on indirect evidence -- the technical issue raised by the Court of Appeals in Gross, and not yet resolved by the Supreme Court. The POWADA would apply the same standards of proof to other employment discrimination and retaliation claims, including those filed under the Civil Rights Act of 1964, the Americans With Disabilities Act of 1990, the Rehabilitation Act of 1973, and similar laws concerning federal employees -- thus overruling Nassar.

Many organizations, including the AARP, have spoken out in support of the POWADA. The proposed legislation has had bi-partisan support - remarkable in today's polarized Congress. Yet the POWADA remains in committee where, without public pressure, it most surely will, once again, die a quiet death.

This is an election year. Many candidates are holding town meetings; the leading presidential candidates are being pressed by the media, on a wide range of issues. All of us, regardless of age, are affected by age discrimination and other unfair practices. We should to call and write to our congressional representative and senators, as well as the presidential candidates, and ask that they support the POWADA.

Too many American workers have gone down for the count. It is time to restore the strength of our civil rights laws. Let's work together to put the "POW" back in our punch. Pick up the phone; write that e-mail; ask that question. The best way to protect ourselves is by becoming active, participating citizens.