We Have Moved!

In Federal Express Corp. v. Holowecki, the United State Supreme Court ruled that the EEOC’s Intake Questionnaire adequately meets the requirements of a “Charge” to trigger an employee’s rights to sue his or her employer in court. The plaintiff submitted to the EEOC an Intake Questionnaire with an affidavit contending that her employer was engaging in age discrimination. The EEOC did nothing with the Questionnaire for six months. The employer was not notified and no charge number was assigned. The employee subsequently filed a Charge of Discrimination and then filed suit.

The Age Discrimination in Employment Act of 1967 (ADEA) requires that “[n]o civil action … be commenced … until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission” (EEOC), 29 U. S. C. §626(d), but does not define the term “charge.” After petitioner delivery service (FedEx) initiated programs tying its couriers’ compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 “Intake Questionnaire” and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent’s action, contending she had not filed the “charge” required by §626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx’s motion. The Second Circuit reversed.

Supreme Court holding in a nutshell: Documents other than a formal EEOC “Charge” can serve as a Charge under the right circumstances. The Court, showing the EEOC a great deal of deference in its administrative interpretation, held that an effective ADEA charge is one that includes the information “required by the [EEOC] regulations, i.e., an allegation and the name of the charged party,” and that should “be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.”

More detailed holding from the official Syllabus:

1. In addition to the information required by the implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a “charge” under the ADEA it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.

(a) There is little dispute that the EEOC’s regulations-so far as they go-are reasonable constructions of the statutory term “charge” and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR §1626.3 says: “charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in acts in violation of the Act.” Section 1626.8(a) identifies information a “charge should contain,” including: the employee’s and employer’s names, addresses, and phone numbers; an allegation that the employee was the victim of age discrimination; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. Section 1626.8(b), however, seems to qualify these requirements by stating that a charge is “sufficient” if it meets the requirements of §1626.6-i.e., if it is “in writing and … name[s] the prospective respondent and … generally allege[s] the discriminatory act(s).” That the meaning of charge remains unclear, even with the regulations, is evidenced by the differing positions of the parties and the Courts of Appeals on the matter.

(b) Just as this Court defers to reasonable statutory interpretations, an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is ” ‘ plainly erroneous or inconsistent with the regulation,’ ” Auer v. Robbins, 519 U. S. 452 . The Court accords such deference to the EEOC’s position that its regulations identify certain requirements for a charge but do not provide an exhaustive definition. It follows that a document meeting §1626.6’s requirements is not a charge in every instance. The language in §§1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. While the regulations’ structure is less than clear, the relevant provisions are grouped under the title, “Procedures-Age Discrimination in Employment Act.” A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents of a charge.

(c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights.

(d) The EEOC acted within its authority in formulating its request-to-act requirement. The agency’s policy statements, embodied in its compliance manual and internal directives, interpret not only its regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a “measure of respect” under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461 , whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218 . Here, the relevant interpretive statement has been binding on EEOC staff for at least five years. True, the agency’s implementation has been uneven; e.g., its field office did not treat respondent’s filing as a charge, and, as a result, she filed suit before the EEOC could initiate conciliation with FedEx. Such undoubted deficiencies are not enough, however, to deprive an agency that processes over 175,000 inquiries a year of all judicial deference. Moreover, the charge must be defined in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws, see 29 U. S. C. §626(d), and disseminating information about those laws to the public, see, e.g., Civil Rights Act of 1964, §§705(i), 705(g)(3).

(e) FedEx’s view that because the EEOC must act “[u]pon receiving … a charge,” 29 U. S. C. §626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual’s right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106 . Moreover, because the filing of a charge determines when the ADEA’s time limits and procedural mechanisms commence, it would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422 . Pp. 12-13.

2. The agency’s determination that respondent’s December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.

(a) Respondent’s completed Form 283 contained all the information outlined in 29 CFR §1626.8, and, although the form did not itself request agency action, the accompanying affidavit asked the EEOC to “force [FedEx] to end [its] age discrimination plan.” FedEx contends unpersuasively that, in context, the latter statement is ambiguous because the affidavit also stated: “I have been … assur[ed] by [the EEOC] that this Affidavit will be considered confidential … and will not be disclosed … unless it becomes necessary … to produce the affidavit in a formal proceeding.” This argument reads too much into the nondisclosure assurances. Respondent did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential and, even then, consented to disclosure of the affidavit in a “formal proceeding.” Furthermore, respondent checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx. The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge.

(b) Because the EEOC failed to treat respondent’s filing as a charge in the first instance, both sides lost the benefits of the ADEA’s informal dispute resolution process. The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance.

Sources: Scotus Wiki

“The age discrimination case that was argued before the Supreme Court on Tuesday turned on a hyper-technical issue that only an employment lawyer could love.” - New York Times

Lot’s of great coverage out on the web regarding the oral argument conducted this week at the Supreme Court in Federal Express Corporation v. Holowecki. This case presents the question of what may constitute a “charge” of discrimination that a potential plaintiff must submit to the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) before bringing a private lawsuit.

Sounds simple right? A Charge is a Charge, Right? Well yes and no.

The problems lies in the fact that the statute does not mandate a particular form for a Charge and in the fact that is not an uncommon occurrence for the EEOC to accept intake documents from a charging party and then lose them or, for whatever reason, fail or refuse to issue a formal Charge document in the case. It is so common in fact that I doubt you could find an employment law attorney that has not dealt with this issue. So the question is who should bear the burden of the government’s failure to properly process a party’s Charge.

Here is what went on in this case: Patricia Kennedy was a courier for petitioner Federal Express (Fed Ex). On December 3, 2001, Kennedy filed an EEOC Form 283 Intake Questionnaire and accompanying affidavit alleging that Fed Ex had instituted a number of policies and practices that discriminated based on age. She did not file an EEOC Form 5 Charge of Discrimination at this point. The EEOC did not assign a charge number to Kennedy’s submission, it did not inform Fed Ex that it had received Kennedy’s Form 283, and it made no attempt at informal conciliation. On April 30, 2002, Kennedy filed a class-action ADEA suit on behalf of herself and others similarly situated. Exactly one month later, she submitted a Form 5 Charge of Discrimination to the EEOC.

The district court granted Fed Ex’s motion to dismiss the suit on the ground that the December 2001 submission did not constitute a “charge” under the ADEA. The Second Circuit, however, reversed. It held that the standard for what constitutes a charge is twofold. First, the court held that a charge must comport with the EEOC regulations, which state that a charge is sufficient when the person making the charge names the employer and generally describes the discriminatory acts. Second, the court held that the EEOC filing must manifest the employee’s intent to file a charge as viewed through the lens of a reasonable person. The Second Circuit found that Kennedy’s December 3 submission clearly had all of the required information and indicated her intention to “activate the . . . machinery” of the EEOC. Her filing therefore met the requirements of the ADEA, and the Second Circuit permitted her suit to go forward. FedEx appealed and the Supreme Court accepted the case.

My reading of the Court’s oral argument transcript indicates to me that FedEx is most likely going to take it on the chin in this one. The company’s argument that a Charge is not a Charge until the respondent company receives notice of it appeared to fall flat with the Court. Even Justice Scalia (no known as a rabid anti-corporate jurist) made it clear that he wasn’t accepting FedEx’s argument, analogizing Fed Ex’s position to the Rules of Civil Procedure. “My goodness,” he said, “It’s like saying there’s not a complaint until an answer is filed.”

Regardless of how this case turns out it really illuminated ongoing issues at the EEOC. In fact, it has stirred a conversation in some circles of the employment bar about whether we should at least start discussing whether the EEOC is still a viable entity. Honestly, I could find lawyers on both sides of the bar that would vote to abolish it and simply allow employees to go straight to Court with their claims, just like is done with every other type of claim. Just something to consider I guess.

Here are some background links:

FedEx’s Petition for Writ of Certiorari

Petitioner’s Brief on the Merits

Respodents’ Brief on the Merits

Petitioner’s Reply Brief

Law.com: Supreme Court Argument Report

The Washington Post: Justices Scold EEOC for Lapses in Age Discrimination Lawsuit

NY Times: Job Bias Case Turns on Filing Right Forms

In a closely watched case I last wrote about here, the law firm Sidley Austin Brown & Wood has agreed to pay $27.5 million dollars to settle an age bias suit brought against it by the EEOC. The case had to do with the question of the EEOC’s ability to seek money damages and reinstatement for partners who were downgraded from partner status by the firm in 1999 and others forced out because of an age-based retirement policy.

The firm had long argued that the partners were just that, partners, and therefore not covered employees under the Age Discrimination in Employment Act. The agency argued that the partners were really employees with no real policy-making power in the firm or power to hire or fire other employees.

Apparently, after the Supreme Court refused to intervene prior to trial and overturn the Seventh Circuit as to this question, the firm decided it was worth $27.5 million to put the case behind it. Now the question becomes how many more firms will be targeted by the EEOC as this type of “partner” structure is not at all uncommon.

Source: Chicago Tribune

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