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October Term, 2007

February 27, 2008

Today the Supreme Court issued one decision, described below, of interest to the business community.

Federal Express Corp. v. Holowecki, No. 06-1322 (previously discussed in the June 4, 2007 Docket Report). Before suing an employer under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.  621 et seq., an employee must first file "a charge alleging unlawful [age] discrimination" with the Equal Employment Opportunity Commission (EEOC). 29 U.S.C.  626(d). The Supreme Court today resolved a circuit split regarding what sort of filing constitutes a "charge," and in particular held that EEOC intake questionnaires and other filings not labeled "charges" can satisfy the statutory "charge" requirement. 

Today's decision is important to every employer subject to suit under the ADEA. The requirement that an employee file a charge serves two purposes. First, by filing a charge, the employee triggers a 60-day waiting period during which the employee cannot sue the employer. Second, the waiting period allows the EEOC time to perform its own investigation of the alleged discrimination and to initiate a conciliation process. The Court, by holding that an array of filings with the EEOC may count as charges, may have helped employers because employers will now receive notice of possible litigation from the EEOC more consistently; employers may also be able to avoid such litigation through the EEOC's subsequent conciliation proceedings. On the other hand, pursuant to today's decision, more cases may ultimately find their way to court, which will disadvantage employers. 

The plaintiffs in Federal Express are current and former employees of the delivery company, all over the age of 40, who sued their employer under the ADEA for instituting performance programs that they allege would violate the ADEA by forcing them out of the company before they qualify for retirement benefits. Before filing suit, one of the plaintiffs failed to file a formal charge with the EEOC, but instead filed an "Intake Questionnaire." Plaintiffs argue that the Intake Questionnaire meets the ADEA's requirement, as interpreted in EEOC regulations, which they claim require only a written document, a "general allegation of discrimination," and a named employer. Slip Op. at 5. Federal Express, on the other hand, asserted that a filing should count as a charge only if the EEOC notifies the employer and initiates a conciliation process. Slip Op. at 12. The lower court, exacerbating a circuit split, held that an employee satisfies the charge requirement with a filing that, although not labeled a charge document, manifests an individual's intent to have the agency initiate the investigation and conciliation process. 

In today's decision, in an opinion authored by Justice Kennedy, the Supreme Court held that the Intake Questionnaire at issue in the case satisfied the statutory charge requirement. Slip Op. at 13-14. In so doing, the Court agreed with the position taken by the EEOC in informal rules and in the litigation, under which a filing constitutes a charge if it names the allegation and the charged parties and can be "construed as a request for the agency to protect the employee's rights or otherwise settle a dispute between the employer and the employee." Slip Op. at 11. 

Justice Thomas filed a dissenting opinion, joined by Justice Scalia.


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