Legislation that would change burden of proof and causation
standards for a number of employment discrimination claims was
reintroduced in the House and Senate on Tuesday. The Protecting
Older Workers Against Discrimination Act (POWADA) (H.R. 2852, S. 1391) would overturn two Supreme Court
decisions that toughened the burdens of proof for employees
bringing discrimination claims under the Age Discrimination in
Employment Act (ADEA) or advancing retaliation claims under Title
VII of the Civil Rights Act.
In 2009, the Court in
Gross v. FBL Financial Services, Inc. held that a plaintiff
bringing a claim under the ADEA must show by a preponderance of the
evidence that age was the "but for" cause of the
employer's adverse employment decision. In order to establish a
viable claim under Title VII, by contrast, an employee need only
demonstrate that the protected category such as race or sex was a
contributing factor in the adverse employment decision. In such a
"mixed
