interpretation, of what congress meant, when it enacted the adea, is inaccurate. a -- unless corrected the decision will have devastating consequences. for older workers. and, the decision could not have come at a worse time. for older workers. who are experiencing a level of unemployment, and job insecurity, not scene since the late 1940s.

this decision takes away a vital legal protection, as the -- at the time the economy does not give older workers, the luxury of ignoring discrimination, and, simply finding another job. the unemployment rate for people over 55 has more than doubled since the start of the recession, rising from 3.2%, in december of 2007, to 6.9%, in march of 2010. once out of work, older job seekers face a prolonged and often discouraging job search. the average duration of unemployment has soared since the start of the recession. in a sub -- and is higher for older workers, over half of job seekers, over 55, are found among the long term unemployed, those who have been out of work, for 27 weeks or more. once out of work, older persons are more likely than the younger unemployed, to stop looking for

work, and, drop out of the labor force. older workers need effective age discrimination laws when employers choose to displace them based on their age, due to stereotypes, rather than performance or other legitimate business reasons. and, clearly, unfounded stereotypes about older workers, linger. aarp attorneys battled perceptions that older workers have less energy and are lessen gauged, despite research showing that actually older workers are more engaged in their jobs, and are more reliable. some employers believe older workers are a poor in investment for training, for participation in training, however, aarp research shows they are more loyal to their currents employers, and, may be better bets in terms of training investments, and, finally, some employers have outdated notions that older workers are unable to adapt, in industries like computers and information technology.

this, despite baby boomers enthusiastic embrace of virtually all forms of rapidly changing i.t. products and services. failing to allow older workers a fair chance to fight age discrimination is directly contrary to other federal policies envisioning that americans will work longer, for instance, the 1983 social security amendments increased the age of eligibility for full social security benefits to be paid. eliminating discrimination is critical, if older persons are to delay their date of retirement. working longer, is good for society. as earners typically pay more in taxes than retirees. it is also good for workers, who have more years to save and less time in retirement to finance, and it is good for employers who retain skilled and experienced employees. aarp strongly endorses f-1756.

it would eliminate the second class status for victims of age bias the court seemed to embrace. in the worst economic conditions in deck indicates, for older workers, congress should act now, to correct this misguided ruling. thank you. >> thank you very much, ms. aldrich. >> good morning, chairman harkin and senator frankly, i thank you and the committee for affording me the privilege of testifying today. i am here, at your invitation, to speak about the proposed protecting older workers against discrimination act. i do not believe the bill would advance the public interest. in particular, the bill is drafted -- as drafted will do nothing to protect workers from age discrimination, other forms of discrimination, retaliation, or any other unlawful conduct. i say this for three reasons, first, the bill incorrectly asserts that the decision by the

supreme court of the u.s. in gross. fbl financial services, eliminated protection from any individuals. the decision, however, does not eliminate protections for victims. before the decision, age discrimination defendants could prevail even when they improperly considered a person's age, if they demonstrated they would have made the same decision or taken the same action, for reasons unrelated to age. the court's decision stripped away the so-called same action, or same decision defense, and, therefore deprived entities that engaging in age discrimination of this defense. for this reason, since the gross decision issued, the federal courts have repeatedly ruled in favor of discrimination plaintiffs and against defendants. in fact, the united states courts of appeals for the first, second, third, 6th, 7th, 8th, 9th, 10th and 11th circuits

issued in favor of discrimination plaintiffs and relied upon the case to do so and second the bill will restore the same action defense eliminated in the gross case, discrimination victims under the bill may prove that a protected trade such as age, with a motivating factor for the practice complained of, yet, still lose their case. this is because the bill would deprive discrimination victims of any meaningful remedy in these same action cases. their lawyers may receive payment for fees, directly attributable to a me vating factor claim, but, the alleged victim will get nothing, no job, no money, no back pay, no front pay, no damages, no promotion, nothing. for example mr. gross's case will be retried after the supreme court's decision, and he will receive nothing even if he proves that age motivated his employer, to demote him if his employer establishes the same

action defense, now, the bill may enable lawyers to earn more money, but, who does it benefit? the answer is lawyers, not victims of discrimination, not unions and not employers. third, the bill is overly broad, vague and ambiguous goos and may open up a pandora's box of litigation. it purports to apply to, quote, any federal law forbidding employment discrimination, and, several other laws, but the bill does not identify which laws it will amend. as a result, discrimination victims, unions, employers, and others, will unnecessarily spend years or decades in untold amounts of money -- and untold amounts of money fighting in court about whether the bill changes particular laws. the public will have to wait years or decades, until the matter trickles up to the supreme court, to settle the question, case by case, about one law, after another. in the meantime, litigants and

courts will waste time, money and resources litigating this issue, with no benefits for anyone. the threat of decades of litigation about these issues is not merely hypothetical. note in this regard it took 38 years of litigation, before the supreme court of the united states finally decided in 2005 that the age discrimination in employment act permits claims for unintentional age discrimination. congress can fix the vagueness problem easily by amending the bill to apply it solely to the age discrimination and employment act which is the only statute at issue in mr. gross's case or at a minimum, listing the laws the congress intends to amend, the pay act of 2009 specifically identified the laws congress intended to amend and congress can do the same here. thank you and i look forward to your questions. >> thank you very much. mr. dreiband.

mr. -- i'll start with you, you state my bill will harm, not help plaintiffs because it would apply the same standard congress enacted on a bipartisan basis as part of the 1991 civil rights act. whereby a plaintiff who proceeds in a mixed motive case is only eligible for injunctive relief and attorneys fees. i want to emphasize, under my bill the plaintiff has a choice of whether to proceed with the traditional causation standard, or proceed as a mixed motive case, where remedies as you know would be limited. is it your issue, not with my legislation but the compromise forged as part of the 1991 civil rights act. >> no. the mixed motive provision of title 7 has largely become a dead letter. i will tell you i have been litigating cases on behalf of the united states government when i served as the eeoc commission and, in private

practice on behalf of both plaintiffs and defendants and in nearly 20 years since the bill was amended, plaintiffs almost never invoked the mixed motive framework and the reason they've not done that, is because the affirmative defense deprives them of any meaningful remedy even if they win, with respect to injunctive relief the federal courts held in cases in which former employees are involved, somebody gets fired, injunctive relief is not appropriate for them and so, as a result, what we see in title 7 cases since the 1991 act is the mixed motive framework is almost never invoked and in hundreds of cases i litigated when i served at eeoc's general counsel i was not aware of and i was involved in many of them, not a single case in which the eeoc itself asserted a mixed motive claim in a title 7 case and the reason is there is no -- or limited remedies available if you win. >> let me ask that, would you be in favor of compensatory and

punitive damages for suits under both adea as well as title 7? >> certainly, congress could amend the age discrimination employment act to provide for those damages. right now the age discrimination employment act provides for full back pay, front pay and lick indicated damages and that is the remedy that has been available for -- since the law was enacted. >> how about title 7 cases? would you be in favor of compensatory and punitive damages then to make them even. >> title 7 permits compensatory and punitive damages under certain circumstances. >> and you say that should apply to adea also. >> congress could do that and i leave it to you to decide whether it is in the public interest or not. >> mr. dreiband raised issues which need to be looked at here. basically the bill, the 1756, would return the law to what it

was last june, apply the standard that has been in place for 20 years and remains in place for claims under title 7 in the civil rights act and the part of the bill is... 1991, which codified the, quote, motivating factor, framework for race, sex, national origin, religion discrimination. title 7. now, you heard mr. dreiband's explanation. can you address yourself to that and to whether or not we are actually harming plaintiffs under this bill. >> you are not, chairman. let me give you a couple of examples, start with mr. gross himself. under the price waterhouse standard, that was in effect for 20 years, mr. gross won. if, 1756 were in effect at the time of the trial, mr. gross would have won. only under the supreme court's new rule, did mr. gross lose his

verdict, and now high faces the prospect of a new try in which he'll bear the burden of proving what was not in the employer's mind at the time of the decision and couple of other examples, since gross. the federal jury system's improvement act prohibits employers from punishing employers -- employees for engaging in their civic duty of jury service, plaintiff brought a claim under that case, and the trial court applied gross, and found the plaintiff was more credible than her employer, and, found the plaintiff had proved that her jury service was a motivating factor in her decision, but nonetheless applying gross, so the plaintiff could not prove other factors also motivated the decision. under gross, she gets nothing. under s-1756 at a minimum, she would get declaratory relief, injunctive relief, a court order enjoining the defendant from engaging in future discrimination against folks for serving on jury duty and would bear the prospect of additional relief depending on whether the

employer could bear the burden of proving it made the same decision as discrimination and we have seen similar outcome under the americans with disabilities acts and other statutes as well. >> i'll ask mr. dreiband's to respond to that. >> certainly, the notion that the price waterhouse versus hopkins case was some great boon to plaintiffs i think is proven sxaekt by mr. gross's case, that it was not. in mr. gross's case, the u.s. court of appeals, in the circuit applied the price waterhouse standard, a 1989 sproom court case that established the mixed motive framework and concluded under the standard mr. gross failed to present direct evidence of discrimination which according to the court, what his lawyer conceded at oral argument and the employer completely escaped liability, despite the fact the jury found he was discriminated against, and the price waterhouse standard was not in my view a benefit to

victims of discrimination and the 1991 amendments certainly partially abrogated the decision in price waterhouse but because they have stripped away any meaningful remedy, plaintiffs rarely, if ever, pursue it. rarely. and, i think, the other thing i would say, since the gross decision, what we have seen is that because employers no longer have this so-called same action defense, under the age discrimination law, the united states courts of appeals are frequently and routinely ruling in favor of plaintiffs. what happened before the gross decision was very often that the federal district courts would rule in favor of defendants and say that the employer had established as a matter of law the same action defense and the plaintiff couldn't get a jury trial out of it and now the courts say the defense is no longer available to employers, and, so the case should be scheduled tor trial. the other thing i would say is the notion that, but for causation has something that requires that age or the other characteristic be the only factor is simply untrue.

the standard -- and it is described by the supreme court in the gross case is a determining factor and can be be one of other factors including at issue in the decision itself, the court stressed there is no heightened burden for plaintiffs in age discrimination cases. >> i feel like i'm back in law school! >> a couple of points, mr. chairman. first i want to be very clear about what happened in mr. gross's case. the trial court applied price waterhouse to his claim and won. and the 8th circuit ruled the price waterhouse was not appropriate because he didn't have direct evidence and the supreme court took cert on that issue whether or not he should have gotten the price waterhouse instruction and if the supreme court answered the question, i very much doubt we'd be here today. instead, the supreme court actually created a new rule that stripped him of his verdict and imperilled the verdicts of many other plaintiffs as well, and mr. dreiband's seems to be

arguing with 1756 in that it doesn't go far enough in terms of providing damages to plaintiffs and i would be open to enhancing the damages available to victims, of discrimination, but, instead, what we are posed with the choice of today is, the choice between 1756, or the status quo under gross, is there any question about which standard is better for employment victims, victims of employment discrimination, absolutely none, s-1756 dramatically improves the protections available to those victims. >> thank you both. i have some questions for mr. gross an ms. all ditch, but i have used up my time, i recognize the senator from minnesota if you want to jump in on this. >> yes. i would like to ask mr. gross, are you surprised by mr. dreiband's assertion that you would be -- you are better off because of the decision in your case? >> first of all, i'm not an

attorney. i stayed at holiday inn once, but this is a little bit beyond my level of understanding. >> okay. >> though, i studied... >> every case, i would think. >> yes. and i am quite surprised by that because i agree that if the supreme court had answered the question that was brought before it my verdict would have been reinstated and i can't see how i can be anything but better off if that had happened. >> and the -- that is an interesting thing, ms. norton, is that the case that was brought before the courts, they took cert on, was different than what they decided on, right. >> that's right. >> ms. norton? >> yes, senator, that is quite right. the court granted cert on a question that divided the lower courts whether or not a plaintiff, victim like mr. gross needed to have direct evidence of discrimination before he could get the price waterhouse construction or whether

circumstantial evidence would suffice and the question divided the lower courts and guidance from supreme court on that would have been most welcome. but, instead, they decided a very different question and articulated a rule that is more punishing of age discrimination victims. >> is that unusual, for the supreme court to make a decision based on an issue that has not even been briefed? >> it is unusual. the issue is raised for the first time by the defendant's brief in the supreme court after mr. gross's attorney submitted their briefs, after the united states government already submitted it is amicus brief after the aarp submitted their brief, the defendant offered the argument for the first time and as the chair of the eeoc noted, the solicitor general noted this at oral argument and urged the court not to address an issue that was not fully and adequately briefed. >> now, it seems to me that given the decision by the

supreme court that just to begin with, it is hard for a worker to prove what an employer was thinking, but, now, after the gross decision, the worker has to present some sort of smoking gun, it seems, to show that age was the determinative factor for the firing or the demotion. as an attorney who has litigated these cases, can you tell me what the smoking gun looks like, what it is supposed to look like, what it has to look like. most people don't write memos and we fire jane because she has a sick granddaughter, but, mostly because she was old. i mean, how do you find the smoking gun. >> you are quite right it is rare. but what is especially pernicious about the gross decision is even if you have a smoking gun, as a plaintiff, you may still lose. so, for example, i offered the

example, this is borne out by the anecdote that chair barry berrien offered, if the employer admits it rejected the employee, because of the stereotype that older workers are less productive than others, even if that plaintiff has that, he or she will still lose and get nothing unless he or she can also prove the employer had no other nondiscrimination reason that would have justified the decision at the same time and it is very hard for the plaintiff to go in to the employer's head and explain what wasn't there at the time of the decision. >> so, it just seems like, to me, that there is a higher wall to climb. and, that is why i was so taken and mr. dreiband seemed to be saying, that after gross, that the plaintiffs have been advantaged. and he seemed to presents some

sort of evidence of that. do you know... did the evidence that he presented seem anecdotal or was it based on some kind of statistics. >> i hope he was not saying gross advantaged plaintiffs. that was not the case, i understood him to say some age discrimination plaintiffs win after gross and i would agree with that, some age discrimination victims still win but many more don't, it is harder to do so. >> they seem to be saying, actually, they were advantaged by it and, is that what you were saying, sir? >> i think it depends on the case, but there are cases that have come down since the gross decision happened, where the federal courts of appeals, have concluded that the standards more favorable to plaintiffs than defendants under the decision issued by the supreme court, and... >> would those be greater than the number of cases under which the opposite is true? because i think that is part of the issue here.

i mean, when you said it in your testimony, you seemed to basically be implying that it is a lower bar now, and it is -- that the number of decisions for the plaintiff have increased, rather than decreased. and, there seemed to be a number 0 subsets here, and it feels to me like while there may be a subset, where plaintiffs have prevailed under this new standard, where they may not have before, that that subset is much smaller than the subset of plaintiffs who have not prevailed, because of this. which would you say is the greater subset, sir. >> what i have seen is that the majority of federal court of appeals cases, decided since the gross decision, have been more favorable to plaintiffs. >> and -- >> include nine federal circuit courts out of 12. >> that is your experience, as you read it, ms. norton.

>> no. if you look at those cases it is true in those cases the age discrimination victim won but it's not because the gross rule helped them won, they won in spite of it, that is different than saying the gross rule advantages plaintiff because a few can still survive it. >> okay. i think there -- is there a statistical way of doing some kind of analysis on that? i want to see who... >> i am saying there is no subset in which plaintiffs are advantaged by gross. so the statistics are easy from my standpoint. >> i would love to see some kind of -- love to see -- running out of time, i see. sorry. but i would love to see some statistical analysis of mr. dreiband's assertion and also, if i could see some statistical analysis from you on

that. is that okay, for both of you, would both of you agree to do that? >> well, i'm happy to provide any information i can to the committee. >> thank you. >> in terms of statistical analysis, what kind are you asking for, like... >> well, i think i was -- i thought i was pretty clear that you talked about -- i was talking about two subsets, one of the subsets, which plaintiffs have been clearly advantaged because of the gross standard. and, the other is when -- where they have been disadvantaged. and your very strong assertion was that the first subset is much larger than the second. and, ms. norton's assertion is that the first subset is not existent. >> okay. >> so i think it should be pretty easy to establish whose

testimony is more persuasive, shall we say. thank you very much. >> let's try to get a little bit further on what senator franken brought up here. and what i think mr. dreiband talked about earlier, who is disadvantaged and not disadvantaged. i want something cleared up for the record here and for me, personally. when mr. gross brought his case, when the jury decided for mr. gross, mr. gross got compensatory damages, i believe, i don't know if you got punitive damages. compensatory damages. >> yes. >> not pain and suffering damages, lost compensation. >> lost compensation. was there also injunctive relief, too? just compensatory damages but not injunctive relief? >> i don't recall if there was

injunctive relief and i don't mean to quibble, compensatory damages, are not available under the age act. he got damages for -- >> sentence that compensatory. >> technically compensatory means noneconomic damages. >> i mean, economic damages. from what mr. dreiband said, under s-1756, mr. gross would not be eligible to get lost wages. under that. and, my counsel says that that is not so. mr. gross would still be able to get those kinds of damages. can you enlighten me on that. >> yes, absolutely. mr. gross received the price waterhouse instruction, the 20-year-old instruction which required him to prove to persuade the jury age was a motivating factor in his decision and he did so convince the jury. then, the defendant was permitted to try to prove to try to persuade the jury that it would have made the same

districts even absent age discrimination and the defendant didn't persuade the jury, price waterhouse and under s-1756, same set of instruction first, jury do you find mr. gross proved age is a motivating factor in the demotion and the jury says yes, under your bill, for sure we know mr. gross will get declaratory and injunctive relief and part of his fees and costs and the second question, jury, do you find the defendant proved nonetheless it still would have demoted him, presumably the same answer, no, and he gets to keep -- he's entitled to whatever back pay and other relief he can prove under your bill. exactly the same result under your bill. >> well, do you disagree with that, mr. dreiband? >> the way professor norton described it, no, i don't agree, i do agree entirely with what she just said. what i don't think we'd agree about is why any plaintiff would

pursue a mixed motive here to e under the bill, and the reality is under title 7, which has similar language the plaintiff can pursue a claim with the "because of" standard, under section 703 under title 7 and not invoke the mixed motive provision of title 7 which is a separate section and my with the eeoc and representing plaintiffs and defendants in title cases, plaintiffs or victims of title 7 discrimination almost never -- in my experience, never -- invoke the mixed motive burden shifting scheme, because, there is a risk that even if they prove discrimination happened there is the chance that the defendant can prove the defense and then they get nothing and as a result, what happens in the real practice of law, is that plaintiffs don't -- tend not to pursue that theory and the cases are extremely rare as a result and because of the defense made available.

>> we are still under 1756 they have the choice, right. >> of course, a lot depends on what we are comparing it to. could you come up with a bill with even greater damages for plaintiffs, you bet. but is the bill better than gross? you bet. it is also an improvement on price waterhouse and, mr. plaintiffs -- and mr. gross sought a pretty waterhouse instruction and saw folks seeking price waterhouse instruction under the ada case and they lost under gros and under the jury case, and, priced waterhouse mixed motive instruction and there is no reason to believe they wouldn't also seek the instruction under your bill. >> i want to understand, our bill toughen take the right away from them. >> if i could, give an example, senator harkin, case of josephine mora, here case went to the 11th circuit this year. she worked for her employer, and, her chief executive officer, that company, said to her, i need someone younger who i can pay less. also said to her, allegedly, you

are very old, very inept, you should be doing is taking care of old people. and, the employer asserted as a defense, that her performance was poor, and, under the price waterhouse mixed motive standard, that it had a -- even fit considered age of ms. mora it had the -- it would have taken the same action because of her poor performance. the district court in that case threw the case out at the summary judgment stage and said there was not even enough evidence despite the statement by the chief executive officer of the company, because, under the price waterhouse standard, that is the so-called same action that the employer would have taken the same action, she loses. the united states court of appeals for the 11th circuit, this year, a couple of months ago, read the gross decision, and, reversed the district court's decision in favor of the defendant and ruled in favor of josephine mora because the court said that the gross decision removed this so-called defense that employers have. and, if i could clear up one

other point, very quickly, senator franken made, i did not mean to suggest that mr. gross is better off because he lost in the supreme court, or in the u.s. court of appeals for the 8th circuit. he would have been better off if the price waterhouse decision had not required direct evidence of discrimination and in my view, and my review of the record it looked to me like harmless error and i think the real problem in the case was the concession at the court of appeals that there was no direct evidence and the issue was framed on that basis rather than the fact that there was admissible evidence of discrimination he and his lawyer presented at the trial. i wanted to clear that point up. thank you. >> i hate that you have -- i hate to keep the ping-pong game going but do you have a response-ons that. >> i wish the supreme court had actually answered the question, and taken cert on, because i'm quite confident -- who knows, i would predict, pretty the supreme court again, would side with her gross, to rule direct evidence was not required, because it is unusual in the law to require unusual types of evidence, in the -- and the court is reluctant to require

that unless and until congress instructs it to do so and of course there is nothing in the age act that requires direct evidence as opposed to serving stanchion evidence and your bill would fix that. >> mr. gross, you have been listening to all of this... back and forth on this. and the legal ramifications of it and everything like that. just in your own head, in your own sense, you are going back to another trial, this november, right? >> that's right. >> under the supreme court's decision, now, it seems to me, you are not a lawyer, i understand that, it seems end the supreme court decision now, you have to prove, you have to prove that age was -- age

discrimination was really what -- the only or the motivating -- not even -- >> but for, the "but for" he can prove it was a motivating factor, he's done it already and but must also prove the employer wouldn't have made the same decision, absent age discrimination and you have to describe what wanes the employer's head absent age discrimination. >> but for his age the employer would not have made that decision. how do you prove that? i mean, i don't know how you prove something like that. you say you are almost trying to prove a negative. >> that is the problem with the whole definition of direct evidence. and what is a smoking gun. we did have a memo that was -- had been produced, i think about a year before, identifying people who were going to get demoted and we noticed that there was only one damon denominat denominatd--

denominator, and that was we were all over 50 and there was nothing we could have done to change it performance wise. >> that to me distills it down, mr. dreiband, in these cases you cited the one you just cited, read from, i mean, not too often do you really have the smoking gun. maybe in a few cases you do. and, obviously, those seem to be the cases that made it to these circuits. where you really had a definite smoking gun. but, most cases you don't have that. and, so, what you have done is, you said, you set this really high bar. if you got a smoking gun, you will win. even under the gross decision. >> yes. and -- excuse me. >> i'm saying, but, that doesn't happen that often, mostly, it is a lot of other things that you have, and what we have said, in the past, is that if you can show that age was one of the

factors, if you can show that, that is the burden on the plaintiff. they have to show that, they showed it, because all of the people that had been demoted and stuff, over the age -- were over the age of 50, that was the one characteristic they had in common. well, then the burden then goes to the employer, then to say, well, okay. we have this evidence, now, you can show and you have all of the documentation, you have the records, you have the performance standards, you've got all of this stuff on your employees, now, you can show, you can come back in and show that that was not the decisive factor. there were other reasons why you denoted mr. gross. well, they can do that. they have all of the data and stuff, but for more gross to show that but for that, they

would have made a different decision, that is almost impossible. unless he's got a smoking gun. and, it seemed to me that, to me is a... from a layman's standpoint, that is the difference between your approach, ms. norton's approach or perhaps, our approach here. we don't want to just limit this to smoking gun cases. we want this more broadly applied. because, we know in real life, in real life, you don't often get the smoking gun and, therefore, we have said if you can show that this was a factor, the burden shifts, employer, you show now that it wasn't just but for his age that you denoted or fired mr. gross. isn't that really the essence of what we're talking about. >> with all due respect, senator, no. i am not suggesting and do not mean to imply that a plaintiff in a discrimination case needs some kind of smoking gun in

order to prevail. the supreme court of the united states in 1973 established the burdens and the burden-shifting that happens in title 7 cases, the courts applied to age discrimination cases. in cases in which there is not a smoking gun. litigants have been operating under that standard under the so-called "because of" race or sex standard for nearly 40 years and have been winning cases without any kind of smoking gun, typically the evidence refers... includes things of the sort mr. gross presented in his case, for example, in his case according to the district court's opinion, there was evidence that a former subordinate of mr. gross was put into a position that he held, that a former supervisor testified that in mr. gross's case, mr. gross was much more qualified, than the younger, former subordinate, and provided similar testimony, and, so the evidence may not have included a smoking gun, or what the court of appeals described as direct

evidence but, under that standard, mr. gross prevailed in front of the jury, i think he would prevail again, if the evidence is as described by the district court. and, so, i did not in any way mean to imply that a smoking gun is necessary. the point i would make base of the framework of the bill, number one, it fails to identify the laws the congress proposes to amend, litigants and -- including victims will be left fighting over that issue unnecessarily for many years, number one, and, number 2, because there is no meaningful remedy available, if an employer proves the so-called same action defense in the same way the title 7 does not provide that kind of meaningful remedy to victims, most victims of discrimination will not pursue the mixded motive framework and that is what we have seen under title 7 and we'll see if the bill is enacted in its current form. >> like preponderance of evidence. the preponderance in the case of

the legal experts that my staff talked to, was also pretty good legal expert in his own right, and others, say that mr. gross is not in as good a position, going back into the trial as he was before. you are saying he is actually in a better position. so, as i said, almost all the legal experts, in the eeoc and others we have contacted about this, in drafting this legislation, said, this will put mr. gross in a better position, it will put him in -- at least equal position, that he was in before. am i wrong in that? >> ms. norton? will 1756 -- if we could pass it today, and get the president to sign it, would this put him basically in a similar kind of a situation he was before or will he be in a worse position. >> he'll certainly be in -- >> going back to trial in november, okay. >> if you pass it before he goes

back to trial he'll be in a better position than he is today under gross. that is absolutely true. >> that is what i keep hearing from everybody but you don't agree with that. so... >> maybe i haven't been clear. what i would encourage the committee to do, is go ask the eeoc how many mixed motive cases under title they've litigated since 1991. and you will find the answer is almost none. and the question -- the question i would have is why. the answer is, because neither the government nor victims of discrimination can prevail even if they win, or at least the possibility is they will not prevail, because if they prove discrimination, there is no -- no damages are available, no back pay, no front pay, no job, no reinstatement, nothing and as a result, most victims of discrimination, given that the choice will pursue the other alternative framework under title 7. and i would -- >> i -- you disagree if you want, maybe i'm wrong, under 1756, if we were passed,

mr. gross, could still get -- maybe i'm wrong in my use of terms, not compensatory damages but could get back pay and loss of wages and that kind of thing. am i wrong. >> he could get liquidated damages and back pay only if the employer fails to prove the defense. that is true. >> that is what happened at trial. what happened at trial. >> what happened the first trial. >> it did and the question though -- >> why wouldn't it happen again. >> it may. >> then why would he be disadvantaged under 1756. >> because it may not happen. >> it may not happen -- i'll tell you what, under the law right now, the supreme court decision, not our law but the supreme court decision, he is going to have a dickens of a time proving his case. how can he prove this? he can't. >> bringing in the same evidence that was -- >> look, let me say this. he would have been better off if the verdict was not reversed.

i don't mean to suggest otherwise, if the u.s. court of appeal didn't reverse the verdict he'd be in a better position. >> now, what we're trying to do with 1756, is to put it back sort of the way it was before and you are saying we're not doing that? >> well, the bill -- the bill does not exactly, you know, mirror the standards that governed at the time of the jury trial, in this case, there are changes, for example i think it is -- as professor norton or somebody mentioned there is no longer the direct evidence requirement in a mixed motive case and that the bill would change. the question, though, is, why someone would want to pursue it. it is true that the jury did reject in this case, the employer's same action defense. and, they do so -- may do so again. >> i don't think mr. gross, i don't know, i'm not his lawyer. ... we don't know. i don't know. that is up to him and his attorney, i guess. whether he'll pursue a mixed

motive. course of action or whether he'll go -- i assume in the previous case it was a mixed motive or just simply straightforward age discrimination, wasn't it? >> it was a mixed motive instruction. >> to the jury. >> yes. but accompanied by that from a lay perspective they also got an instruction that said if farm bureau could show any evidence, any evidence that they would have taken the same action, in absence of my age, they should find in favor of farm bureau. now, to me that is -- as a layperson, that is a "but for" causation, so, i'm not sure i -- as a layperson, i understand, you know, the intricacies of the way the language is getting parsed back and forth. >> i would add, that is a good question. in the burden of proof -- the burden of proof matters and merited at trial the employer had the burden of proof and

gross flips that and says it never shifts to the employer even if the plaintiff can prove discrimination and your bill would return it to the status quo, once he proves discrimination played a role, the burden of proof shifts to the employer and that matteres. >> what would the instruction to the jury be under the supreme court decision now. >> under the supreme court decision. >> as it stand now, what would the instruction be. >> do you find mr. gross proved by a preponderance of the evidence that age was the "but for" cause of the demotion. >> but for that, he would not have been demoted. you think a jury -- would a jury understand that? i have a hard time understanding that. >> if i could clear fi on that question, the -- clarify, they clarified the put for jury instruction by the u.s. court of appeals in that circuit and the instruction explains the "but for" causation does not mean

that age in this case has to be the only reason for the decision, rather than -- the jury instruction explains it has to be a determining factor. and, so what you are ultimately arguing about is a determining factor or motivating factor and whether or not there is a difference between those two standards. and discrimination plaintiffs have been winning cases for decades, under the determining factor standard that the gross decision sets and this notion that it somehow created an impossible burden is simply untrue and is not what we are seeing in the courts, and, is not true under title 7. >> just to briefly respond, i guess we can take solace in the fact we know how the civil rights act of 1991 standard worked. >> say that again. >> is the standard that you are proposing is one that has been in place for 20 years under title 7. we know how it worked. it has been in place 20 years and i note, too, it was also the position taken by the department of -- reagan department of justice, during the price waterhouse litigation, they

adopted the standard, the -- that you are proposing and briefing of the price waterhouse case in 1988 and the first president bush endorsed the same standard, in enacting the civil rights act of 1991 and appropriately balances the interest of both employees to be free from discrimination in the interest of employers and considering nondiscriminatory factors in making employment decision. >> it seems to me, again, ms. aldrich you have been patient with all of this going on here. >> i also am not an attorney by background, but, i would say that from my perspective in looking at this, it just seems, thinking about all of the potential employees, who have age discrimination case, this sets a tougher and different standard for those cases. i think you have heard from mr. gross how difficult it is to come forward on age discrimination case. the pressure, the loyalty, older workers are more loyal. older workers have a hard time coming forward, anyway. and then to have to make a

tougher standard, seems to me to be have unfair, and, i also think it is important for us to put it into the context of what is going on right now, we did a survey at aarp, a pre-recession -- and i'm sure the numbers would be higher now, where older workers said that they have seen or experienced discrimination in the workplace, these are workers between 45 and 74. 60% said, so i mean, i think age discrimination is extremely important, and i would like to see us restore the standard that is similar for other discrimination cases. >> i think that is what -- really the numbb of it and i wa taken back to think what we were doing was not helping in -- with the 1756. and somehow, older workers are in much better position, because of the supreme court decision.

i just... auto find that very, very hard to understand. mr. dreiband. i know there are fine legal points and things, there, but, it again comes down to that trial court and what the instruction to the jury are and it seems the instruction under the previous law was much more clear-cut and it did put the burden on the defendant, after he proved, after he got over the first hurdle, and the jury said no. they didn't show there was any other reason that age was the factor. now, it is all on him, as he goes back to trial court. defendant doesn't have to do anything. he just has to show everything and i suppose if he has a letter from his employer saying you old goat we want you out of here, you know, that could be a smoking gun, i suppose.

or something like the things you said, that were in these other cases. but, that just doesn't happen that often. and, for the reason ms. aldrich pointed out, how tough it is for older workers who have been at the company a long time and you have loyalty and friends there... to raise that bar up again, it would seem to me, it would tend, the way things are right now, would tend to say to an older employee, who is facing that kind of discrimination, that, you know, better not to fight. better just to leave. and do something else. and, not put up a fuss about it. but, that is not the right way to do things. i mean, that would just be giving in to discrimination. and, you know, you've got to have people with the guts and the courage of their convictions, like mr. gross, who

understands it's not just about him, it is about a lot of other people, too. >> a lot of other people. >> a lot of other people are getting hit by this. and you know, there are a lot of other people, other than mr. gross who were affected by this, but, for whatever reason decided not to go forward, for whatever reason. i don't... i don't want to look at anybody's motives but mr. gross understood if i don't do this, if i don't stand up, who is going to stand up and go up and say, wait, this is wrong. this is not the right way to proceed in our society. >> that's right. >> and that the laws ought to mean something. if they are going to protect people against discrimination. so, i -- again this is why we have got to get back to where we were, back to a semblance of where someone like a mr. gross can come forward though he doesn't have a smoking gun but a preponderance of evidence, and, he can show that age was a factor, and, then, let the

defendant, as we have said in the past, show that that was not -- there were other reasons, all of these other reasons, why they demoted or fired or got rid of somebody. >> it seems to me that what is we are trying to get to. am i wrong. >> senator harkin, may i briefly respond? because... with respect to any of my remarks i want to be clear, age discrimination in employment is a terrible problem in the united states, and has been one for a long time. and, i did not in any way mean to suggest by any of my remarks that i thought or i think that age discrimination victims should have some kind of increased or heightened burden to prove their case. when i served as the general counsel of the eeoc, we litigated hundreds of cases. i personally intervened and argued on behalf of victims of age discrimination in several cases, both to authorize the

cases on the front including several class action cases against major employers and law firms and argued in the u.s. court of appeals and worked with the solicitor generals on behalf of victims in supreme court cases and we recover more money for discrimination victims through eeoc's litigation program during my tenure than at any other time before or since in the e. oc's history and i'm proud of that service and feel honored to have served with many of the people still at the eeoc and i want to be clear i did not in any way mean to suggest that age discrimination is not a problem or that victims of discrimination should have and on russ burden to prove their case. that is not what i intended to imply and i wanted to make the record clear on that. >> i want to be sure i never inferred that from any of your statements. and it is just, i'm trying to figure out, there seem to be different approaches how to do this. our job here is to try and

figure out which is the best approach and so, i try to go out to the experts and different groups and try and figure out what is the best approach, and all i can say is that... maybe we can make it tougher. i don't know. i also have to look at the reality of what we can do here, in a legislative sense, but it seems to me that what was happening before and the fact that you were successful, in prosecuting all of the cases, whatever the law was before, seemed to work pretty well. and, now, since the gross decision, it created a turmoil, created a lot of uncertainty, and, from what i understand, will create a higher burden of proof for plaintiffs than what we have had in the previous 20 years.

well, if that is the case, we want to... i don't want to have a higher burden of proof for plaintiffs. i think they have already had a burden of proof. and, i think the logic of the law that we have had for the last 20 years has been pretty good. seems to me. but, no, i didn't infer anything that you were -- had bening but proposed age discrimination is two viewpoints how to get to the solution of this. which always raises questions around -- in our legislative process. well, this is very interesting, and, do we have any, anything else anybody wants to say before we close up? at all? >> can i make one small point. >> sure. >> something we haven't focused on that i think the congress could easily fix is that the problem -- the problem in the

bill, ambiguity in terms of which laws the bill would amend. the law says that it would amend or apply to any federal employment discrimination law, and, by not listing those laws, it creates a lot of uncertainty. i think could easily be clarified by the congress, if it wanted to simply list the laws, congress intends to amend and i've encouraged the committee -- >> i have been through that, i have been through that. what was the recent case? >> my counsel tells me there was a case the court decided it did not apply to the jury improvements act. i never heard of the jury improvements act. but, here's what i remember about specificity. i remember when we were passing the americans with disabilities act, it may not be on point, in a legal sense, but i remember

when we were passing the americans with disabilities act there was a move by some that said that we couldn't leave it as broad as it was. we had to specify every single disability. that is an impossibility. there are permutations of all kinds of disabilities and you might have listed one but maybe it was a subset of that and didn't really apply. and it seems to me that if we don't leave this broad and we try and specify every -- i bet we would have not looked at the jury improvement act. you know? hundreds, hundreds of different things out there, that congress has passed. what if we forget one? then we have to come back here and pass another law to cover that? that is why this idea of specificity, and specifying every, single law, just doesn't work. that is why we leave it broad.

and, we leave it up to -- need i say this, to the courts to say what was congress's intent? and, we will have plenty of written and also in our record, our hearings and records as i'm making today, and, we will have it in terms of our report language, that we intend to have this applied broadly. broadly. that is what we said with the americans with disabilities act we intend it to be applied broadly. in terms of disabilities. and that is what i think we have to do here. as i said, i don't think we can specify it. that is my response on that. well, thank you very much. it has been enlightening and, boy, i wish i would have paid more attention in law school now. but, it was very enlightening and, i thank you very much for this. the record will be kept open for ten days for other question, to be submitted, by senators who

for one reason or another could not be here today. thank you again, very much. the committee will stand adjourned. >> thank you. [inaudible conversations]: