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Employment Law Update

Age bias legislation and defamation claims

By Mike O’Brien bio

Here is my periodic update prepared for interested HR professionals trying to deal with the complex American employment laws.

House passes age bias legislation: The U.S. House of Representatives has passed the Protecting Older Workers Against Discrimination Act (POWADA). The bill, passed in January, would allow an older worker to sue for job discrimination even if age was not the sole cause of adverse employment action, but simply one motivating factor in the decision. Under the ADEA and a 2009 Supreme Court decision (Gross v. FBL Financial Services, Inc.), an aggrieved worker must show that “but for” age (40 and over), the challenged employment decision would not have been made. POWADA would substantially lower that standard to proof that age was a “motivating factor.” In addition, the bill would also apply that same standard to retaliation claims brought under Title VII and the Americans with Disabilities Act. (Current law allows a “mixed motive” standard for claims of discrimination under Title VII, but requires “but for” proof for retaliation claims.)

Proponents of the legislation argue that age bias is common, and is a growing problem as the number of older workers in the workforce is expected to increase. The Senate is not expected to pass the legislation, and the White House has expressed disapproval of the bill, saying it would “open the floodgates to weak or frivolous claims” of age discrimination. The White House statement argued POWADA “would allow plaintiffs to prevail and obtain limited forms of relief if the protected characteristic was a ‘motivating factor’ in the employment action, even if the employer can demonstrate they would have taken the action, for example, because of poor performance, regardless of age.” It is therefore considered unlikely to become law in the foreseeable future.

Defamation claims represent new front in #MeToo litigation: Recent media reports highlight a new front that has opened up in the #MeToo movement. When the movement began in October 2017 with explosive claims against Hollywood power player Harvey Weinstein, women coming forward with allegations of misconduct dating back many years found that, in many instances, they were barred from relief in court due to the statutes of limitation pertaining to such claims.

Some women have found a work-around in the form of defamation claims. The New York Times reports: “While the facts of the cases vary, the plaintiffs are generally using defamation law not just for its general purpose—to dissuade damaging speech about them—but also as a tool to enlist the courts to endorse their version of disputed events.” Faced with accusations of misconduct, some alleged perpetrators have responded in ways their accusers believe are defamatory (such as by calling the alleged victim a liar). By bringing a defamation claim, the victim has an opportunity to litigate the veracity of the underlying allegation. On the other side, some men are fighting the accusations against them with defamation claims of their own.

Commentators on both sides are concerned about possible negative effects of such claims, including a chilling of #MeToo allegations on the one hand, and unfair limitations on the rights of those accused to fully and properly defend themselves. Employers faced with #MeToo type allegations should coordinate their responses to such claims carefully with experienced legal counsel to avoid being sued for defamation.