December 04, 2023

POWADA – It Amends More than Just Age Discrimination

On December 4, 2023, select members of Congress announced the reintroduction of the Protecting Older Workers Against Discrimination Act (POWADA). The bill proposes to return to what is commonly referred to as the mixed-motive rule  under the Age Discrimination in Employment Act (ADEA). Despite its name, the bill effectively does the same to the Americans with Disabilities Act (ADA); Title VII of the Civil Rights Act of 1964 (CRA); and the federal Rehabilitation Act.

What’s mixed motive? Let’s use the CRA as an example. This federal law prohibits discrimination in employment “because of” an individual’s race, color, religion, sex, or national origin.  Discrimination includes myriad adverse employment actions like issuing corrective action, failing to promote, or firing an employee. But what does “because of” mean? Must the individual’s protected status be the sole reason for the employer’s action (known as but for causation) or does the protected status need only be motivating factor for the employer’s action, such as if the employee was a poor performer and nearing retirement age?

In 2009, the U.S. Supreme Court ruled it was the former. A plaintiff must show that age was the reason for the employer’s action. Said another way, the plaintiff must show that but for the plaintiff’s age, the employer would not have taken the adverse employment action.

POWADA attempts to replace the but for rule with the mixed-motive rule under all four statutes.

Implications for employers? If POWADA should pass this go-round and be enacted, it will be more important than ever for employers to document their corrective actions. Documented coaching, counseling, and corrective actions can go a long way in demonstrating that an individual’s protected status played no part in a decision to take an adverse employment action and that the action was based solely on the individual’s performance, conduct, excessive absenteeism, lateness, etc.