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An employee ranked in the top third to fifth percentile in his annual review and eventually rose to become Administration Vice-President in a state governmental agency. After being demoted in 2000 and 2003 and being replaced by someone younger, Gross alleged that he had fallen victim to age discrimination. However, the Supreme Court ruled that if factors other than age were involved, the employee has to prove that age was the determining factor in an alleged act discrimination. If age was not found to be a determining factor, the employee will have no such right to sue.

Congress is now attempting to undo the ruling by amending the Age Discrimination in Employment Act through H.R. 3721 - Protecting Older Workers Against Discrimination Act. This bill would apply a lower standard or proof and authorize the "mixed motive" cases, (instances that do not involve age as a determining factor) in Title VII of the Civil Rights Act with regard to age discrimination in the workplace.

The Civil Rights Act also protects individuals from employment discrimination the basis of race, color, national origin, sex or religion. If the bill is passed, the burden of proof will be shifted from the employee to the employer, and it would be the second time Congress responded to a Supreme Court decision related to employer discrimination in the last two years. The first was the Lilly Ledbetter Fair Pay Act of 2009, affecting equal pay lawsuits based on sex.

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