The Protecting Older Americans Act Is Good Policy

Two years ago, a federal law exempting sexual assault cases from mandatory arbitration became law. Now advocates want the federal government to do the same for age discrimination claims.

Although the Seventh Amendment to the U.S. Constitution guarantees the right to a jury trial, millions of Americans are instead forced into mandatory arbitration by clauses buried in employment contracts or other paperwork that an employee signs at the time of hire. The sponsors of the Protecting Older Americans Act (POWADA) aim to change that.

What is the Protecting Older Americans Act?

The Protecting Older Americans Act is bipartisan legislation introduced in 2023 that would end mandatory arbitration in age discrimination cases. U.S. Senators Kirsten Gillibrand (D-NY), Lindsey Graham (R-SC), Dick Durbin (D-IL), and Representative Nancy Mace (R-SC) introduced the bill to end forced arbitration clauses that stop victims of age discrimination from seeking justice and accountability.

Some critical provisions of the Protecting Older Americans Act include:

• Reversing the burden of proof: POWADA would shift the burden of proof in age discrimination cases from the plaintiff (employee) to the defendant (employer). Currently, under the ADEA, the burden is on the plaintiff to prove that age was the decisive factor in an adverse employment action. POWADA would require employers to demonstrate that age was not a factor in such actions.
• Clarifying the “but-for” standard: The bill clarifies that plaintiffs need only show that age was a motivating factor in the adverse employment action, rather than the sole cause. This aligns with the legal standards applied in discrimination cases based on race, sex, religion, and national origin.
• Allowing mixed-motive claims: POWADA allows plaintiffs to bring “mixed-motive” claims, where they can argue that age discrimination was one of multiple factors contributing to an adverse employment action, even if the employer also had legitimate reasons for the action.
• Extending the statute of limitations: The proposed legislation would extend the statute of limitations for filing age discrimination claims from 180 days to four years after the alleged unlawful practice occurred, bringing it in line with other federal anti-discrimination laws.

On May 9, 2024, the U.S. Senate Judiciary Committee advanced the bill out of committee and onto the Senate floor for further discussion and possible amendments before another vote.

How common is age discrimination in the workplace?

Most older workers have reporting observing age discrimination in the workplace. A 2020 AARP survey found that approximately 78 percent of older workers have either witnessed or experienced age discrimination in the workplace – the highest percentage reported since AARP started following this statistic in 2003.

Although the Age Discrimination in Employment Act makes age discrimination against individuals 40 years old or older illegal in the U.S., it still happens under various circumstances, such as:

• Hiring: Older job seekers may face discrimination during the hiring process, with some employers preferring younger candidates.
• Promotion: Older employees are sometimes passed over for promotions or career advancement opportunities in favor of younger colleagues.
• Termination: Older workers may be targeted for layoffs or involuntary retirement due to stereotypes about their productivity, technological proficiency, or adaptability.
• Hostile work environment: Ageist remarks, jokes, or slurs in the workplace can create a severe or pervasive hostile environment for older employees.

Studies have shown instances of age discrimination across various sectors and occupations. Older workers may struggle to find new employment after job loss, face challenges in advancing their careers, or encounter bias in performance evaluations. Efforts to combat age discrimination, including awareness campaigns, legal protections, and initiatives promoting age diversity and inclusivity in the workplace have been made. However, age discrimination remains a concern for many workers. To complicate matters, victims of age discrimination are sometimes forced to resolve their disputes through forced arbitration rather than getting their day in court.

What is forced arbitration?

Forced arbitration is a legal process in which individuals waive their right to pursue litigation and are required to resolve disputes with a company through arbitration rather than through the court system. This means that if you have a conflict or a complaint against a company, instead of being able to file a lawsuit and have your case heard in court by a judge or jury, you are compelled to go through a private arbitration process.

In forced arbitration, both parties present their cases to a neutral arbitrator or panel of arbitrators, who then make a decision that is typically binding, which means it cannot be appealed to a court. The number of workers subject to forced arbitration has more than doubled in the last 20 years. In 2019, the Economic Policy Institute predicted that over 80 million nonunion, private-sector U.S. employees would subject to forced arbitration this year.

The term “forced” is used because arbitration agreements are often included in contracts for employment or onboarding paperwork an employee signs at the time of their hire, and an employee may not have much choice but to agree to arbitrate future claims if they want to take the job. This can leave individuals feeling like they have little recourse if they have a dispute with the company, as they are essentially giving up their right to pursue legal action in court.

Were you a victim of age discrimination at the hands of your employer? At Buckley Bala Wilson Mew LLP, our Atlanta age discrimination lawyers help you obtain the evidence you need to show your employer terminated your job or adversely affected your employment due to your age. We’ve helped many employees throughout Georgia acquire fair recoveries.

Buckley Bala Wilson Mew LLP is the firm of choice for many employees throughout Georgia. To speak with our experienced Atlanta-based age discrimination attorneys. We conduct phone and video consultations by appointment for potential clients who can’t travel to our office. We proudly serve clients throughout Georgia. Call us or complete our contact form to schedule your initial consultation today.