In the US, a group of Democratic and Republican congressmen seek to make it easier for individuals to successfully claim age discrimination.
In 2009, the US Supreme Court decision of Gross v FBL Financial Services ruled that older workers must prove age discrimination was the “sole motivating factor” for the loss of their job. The US Supreme Court said that a claimant bears the burden of proving that age was the "but for" cause of discrimination.
In the UK, a "but for" test was applied for many years. The orthodoxy in any discrimination claim was to ask "would A have treated B in that way, but for their age (or sex or race etc).
However, this was relaxed by case law. The House of Lords in Nagarajan said that subjective thought processes are in fact a central issue. The correct test should be "what was A's conscious or subconscious reason for treating B less favourably?". This was not an express overruling of the "but for" test, but a reinterpretation. Age need not be the reason behind less favourable treatment, but simply a reason.
The Protecting Older Workers Against Discrimination Act introduced by Reps. Bobby Scott (D-Va.) and David Young (R-Iowa) would move the US's laws closer to this position by re-establishing the "mixed motive" test for age discrimination. This means that, as in the UK, an age discrimination claim would be well founded if age was just one of multiple reasons.
The Congresmen's proposed law would provide greater job security for workers who are nearing retirement. It is a companion bill to legislation introduced in October by Sen. Mark Kirk (R-Ill).
In a statement, the Congressmen said, “today, Americans are working … longer than they ever have. When older workers lose their jobs, they are far more likely than other workers to join the ranks of the long-term unemployed.”