Oct 25, 2007

Employment Cases Before the Supreme Court: Part II

In early November, the Supreme Court will hear arguments in a case that will decide what constitutes "filing a charge" of age discrimination with the Equal Employment Opportunity Commission (EEOC).

Like other federal antidiscrimination laws, the Age Discrimination in Employment Act (ADEA) requires employees to file a charge of discrimination with the EEOC before suing their employer directly in court. In the case before the Court, Federal Express v. Holowecki, a group of employees claimed that Federal Express had adopted a number of policies and practices that discriminated against older workers. However, there was a dispute as to whether the employees properly filed EEOC charges before proceeding with their lawsuit.

The question the Supreme Court will decide is whether filing an intake questionnaire with the EEOC, along with a four-page affidavit detailing the allegedly discriminatory actions, counts as filing a "charge." (You can find links to the lower court's decision and the briefs of all the parties and other interested groups here.) Federal Express argues that it shouldn't, because the EEOC uses a separate form for charge-filing purposes, which the employee didn't complete. As a result, the EEOC didn't treat the questionnaire and affidavit as a charge, which means Federal Express never had notice of the charge or an opportunity to try to resolve the problem through the EEOC's conciliation efforts. As this is the purpose of requiring employees to file a charge in the first place, Federal Express argues that it isn't fair to allow the lawsuit to go forward.

The employees - and the federal government, which is weighing in on the employees' side - argue that the employee who filed the questionnaire and affidavit (Patricia Kennedy) gave the EEOC all of the information necessary to file a charge. The employee wasn't represented by a lawyer, and her documents give every indication that she wanted the EEOC to act. In the employees' view (and that of the federal Court of Appeals that found in their favor), the EEOC made a mistake by failing to treat the documents as a charge, and the employees should not have to pay for that mistake.

And the EEOC agrees - in fact, the agency has already taken the blame for this one. In a memorandum to local EEOC offices, the EEOC's General Counsel and Director of the Office of Field Programs have said that notice should have been sent to Federal Express in this case, and all but admit the questionnaire was a charge. The EEOC's own Compliance Manual states that an intake questionnaire should be treated as a charge of discrimination if it includes all of the relevant information, which the employee's documents in this case seem to have done. Because the EEOC agrees that the employee's documents meet its definition of a charge, the Supreme Court would have to invalidate the EEOC's internal rules to find against the employees in this case. This wouldn't be unheard of, but it would be a bit of a slap in the face to the agency formerly run by Justice Clarence Thomas.

Lisa Guerin