Potential Congressional Change Affecting Older Workers and Discrimination

23 Mar

On February 14, 2019, a bipartisan group of lawmakers in the Senate and House reintroduced the Protecting Older Workers Against Discrimination Act. This bill can result in reversing a decision made by the U.S. Supreme Court in 2009 by amending the Age Discrimination in Employment Act (ADEA) to allow for mixed motive discrimination claims.

“Mixed motive” discrimination is a category of discrimination under Title VII of the 1964 Civil Rights Act. If a plaintiff can show intentional discrimination in a mixed motive case, the defendant is still able to avoid liability for money damages by demonstrating that the same decision would have been made even in the absence of an impermissible motivating factor. So, if age was a factor that was considered in refusing hire, the defendant who considered age as a disqualifying factor can show that disability also disqualified the applicant. Orders of reinstatement, as well as the substitutes of back and front pay, are prohibited if proven that age was not considered when disability was a disqualifying factor [42 U.S.C. §2000e-5(g)(2)(B)].

The Supreme Court has ruled that direct evidence is not required for a plaintiff to prove that discrimination on the basis of age was one of several motivating factors in a “mixed-motive” case, i.e., a case in which an employer had both legitimate and illegitimate reasons for making an employment decision. Republicans in Congress are currently seeking to change the law to better protect employers from this consequence. 

The WorkSaver Solution:

WorkSaver fitness-for-duty (FFD) examinations base pass/fail determinations for post-offer hires and return to work cases strictly on whether or not, on the day of the examination, a person can demonstrate the functional abilities to safely perform the essential functions of a job with or without accommodations. This determination is conducted objectively without regard to age, gender, race, disability or any other factors other than functional ability.

Essential functions of the job are determined by a physical demand validation (PDV) process used by WorkSaver ergonomic specialists to create validated functional job descriptions (FJDs). Validated FJDs are very important to have for various HR functions and for medical determinations of work abilities (for new hires and return to work cases).

By basing decisions for job placement on physical or functional abilities to perform essential job functions safely, employers, who also incorporate appropriate interactive accommodation reviews when needed, do not have to worry about any legitimate claims of age, gender, or disability discrimination.

About the Author:

Dr. Bunch is the CEO and co-owner of WorkSaver Employee Testing Systems and serves as an Adjunct Associate Professor at Tulane’s School of Environmental Medicine.  He is the author of “Legal Aspects of Fitness for Duty Testing” published in the American College of Occupational and Environmental Medicine’s “Occupational Health Guide.”

For more information, call WorkSaver at (800) 414-2174 or e-mail  or

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