On January 16, 2020, Nick Reiter was quoted in SHRM regarding the possible impact of the Protecting Older Workers Against Discrimination Act (POWADA), a bill that would permit plaintiffs to sue for age discrimination, even if age was not the sole cause of the challenged employment decision.
According to the article, the U.S. House of Representatives passed POWADA on January 15, but the U.S. Senate is not expected to pass the legislation, and the White House has announced it would veto it. The Trump administration noted that the bill would reduce the burden of proof for claims under the Age Discrimination in Employment Act (ADEA), which permits employers to show that there is a reasonable factor other than age (RFOA) justifying its employment decision.
If POWADA mixed-motive claims were permitted under the ADEA, as they are under Title VII for discrimination claims, "it would not be surprising to see an uptick in the number of successful ADEA plaintiffs," said Reiter. Mixed-motive claims currently aren't permitted for Title VII retaliation claims.
Another likely result if POWADA were enacted would be more ADEA settlements, Reiter added. Under a mixed-motive standard, some ADEA plaintiffs might find it easier to defeat employers' summary judgment motions. "Rather than incur the expense and uncertainty of a trial, some employers may pursue settlement more vigorously after they swing and miss at summary judgment," he said.