There were two bills introduced to Congress that would affect employers. The first is the Protecting Older Workers Against Discrimination Act. The intent of this Act is to overturn the Supreme Court decision in Gross v. FBL Financial Services, Inc. The Gross decision was a win for employers because the Court held that a plaintiff must prove that age was the “but for” cause of the employment decision, which creates a high burden for a plaintiff to meet. This Act would reverse the legal standard so that an employee would only have to show that age was a “motivating factor”, which is a much lower standard of proof.
This would not be the first time Congress reacted to a Supreme Court decision favoring employers. The passage of the Americans with Disabilities Act Amendments Act of 2008 was done in reaction to two pro-employer decisions, Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
The second bill is the Password Protection Act of 2012, which would ban employers from requesting individuals’ user names, passwords and any other means of accessing social networks. It would prohibit employers from taking adverse action against applicants or employees who refuse to provide such passwords. This issue has garnered a lot of attention in the past few years and even Facebook took the position that such action violates privacy rights.
Kelly Schoening is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.
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