On Feb. 27, 2008, the United States Supreme Court issued its much anticipated decision in Federal Express Corp. v. Holowecki, a case that will have a profound impact on the way age discrimination claims are handled under the federal Age Discrimination in Employment Act (“ADEA”).
Before a plaintiff may sue under the ADEA, he or she must file a “charge” of discrimination with the Equal Employment Opportunity Commission. The EEOC makes available a form—called a “Form 5”—that complainants may use for this purpose. In a 7-2 decision, the Supreme Court found that a different form—an “Intake Questionnaire”—can also serve as a “charge” of discrimination, even though it is not typically intended to be used for that purpose.
Background of the Federal Express Case
In the mid-1990s, Federal Express Corporation (“FedEx”) implemented programs that tied its couriers’ compensation and continued employment to certain performance standards. Fourteen current or former couriers over the age of 40 sued FedEx in a New York federal district court, asserting that the programs were designed to force older workers out of the company and therefore violated the ADEA.
One of the 14 plaintiffs, Patricia Kennedy, filed a formal Form 5 charge of discrimination with the EEOC, but only after her lawsuit was filed. FedEx moved to dismiss Kennedy’s action on the basis that she had not exhausted her administrative remedies with the EEOC. Specifically, FedEx argued that the ADEA barred a lawsuit from being filed “until 60 days after a charge alleging unlawful discrimination has been filed” with the EEOC.
Kennedy opposed dismissal on the ground she had filed a valid charge more than four months before filing suit. Though Kennedy had not filed a “Form 5” charge at that time, she had filed an Intake Questionnaire on the EEOC-issued “Form 283.” Along with the Intake Questionnaire, Kennedy also filed a signed Affidavit, in which she detailed the FedEx practices that she alleged to be discriminatory. The local EEOC office with which Kennedy filed the Intake Questionnaire and Affidavit did not treat the documents as a charge; thus, the agency did not inform FedEx of its filing, nor did it initiate conciliation proceedings to attempt to settle the matter without resort to litigation.
The district court dismissed Kennedy’s complaint, deciding that the Intake Questionnaire and accompanying Affidavit did not constitute a “charge” under the ADEA. On appeal, the U.S. Second Circuit Court of Appeals found that the Intake Questionnaire and Affidavit should be been treated as a “charge” and therefore reinstated the lawsuit. The issue before the Supreme Court was whether an Intake Questionnaire may be deemed a “charge” sufficient to exhaust a plaintiff’s administrative remedies under the ADEA.
The Court Defers to the EEOC’s Definition of “Charge”
The Supreme Court observed that the term “charge” is not defined in the ADEA or in its governing regulations. The Court therefore looked to the EEOC for guidance in how to define the term.
In an amicus curiae (“friend of the court”) brief filed in the case, the EEOC expressed the view that “the proper test for determining whether a filing is a charge is whether the filing, taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights.” The Court observed that this expression of the EEOC’s position was consistent with a number of “internal directives” that the EEOC had issued to its field offices in recent years. These policy statements, said the Court, were entitled to significant weight under established Supreme Court precedent governing the “measure of respect” accorded to an agency’s interpretive statements.
Finding that the EEOC’s proposed definition of the term “charge” was entitled to deference, the Supreme Court held that a filing will be deemed a “charge” under the ADEA if, in addition to containing the minimal information set forth in the regulations, it can 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.” While the Court recognized that this ruling allowed a wide range of documents to be considered “charges,” the Court decided that this result was consistent with the ADEA, which was designed (in part) to enable pro se litigants to easily invoke the remedial processes of the EEOC.
The Intake Questionnaire Was a Charge
After determining how to define “charge,” the Court found little trouble in deciding that Kennedy’s Intake Questionnaire and Affidavit satisfied the definition. Though the Intake Questionnaire by itself did not contain language suggestive of a “charge,” the Court did not consider the questionnaire in a vacuum. The Court found it significant that Kennedy also filed a detailed six-page Affidavit that “supplemented” the Intake Questionnaire. In the Affidavit, Kennedy asked the EEOC to “force Federal Express to end their age discrimination plan,” a statement that the Court found to be a request for agency action.
Given its determination that Kennedy’s filing was a “charge,” the Court affirmed the Second Circuit’s decision to allow Kennedy’s age discrimination lawsuit to proceed. Though the Court considered it “unfortunate” that the EEOC field office did not treat Kennedy’s filing as a charge, and therefore deprived the employer of the opportunity of conciliation and settlement before a lawsuit was filed, the Court deemed the result unavoidable in this instance. The way to avoid future unavoidable consequences, the Court observed, was for the EEOC to establish a clearer, more consistent process.
Practical Impact of the Decision
The Supreme Court itself recognized that its decision expanded the universe of documents that may be considered a “charge” of discrimination within the meaning of the ADEA. Accordingly, employers may expect to be notified by the EEOC of complaints filed with an agency about allegedly discriminatory practices, even when the complainant has not filed the Form 5 charge document that the EEOC customarily uses. And even in situations where the EEOC does not give an employer notice of a filing with the EEOC, the employer may find it more difficult to dismiss an ADEA lawsuit on the ground that the employee/plaintiff has not exhausted the “charge” requirement. Unless and until the EEOC implements clearer guidelines with respect to the requirements of a “charge,” an ADEA plaintiff who has not filed a Form 5 charge may be able to invoke Federal Express v. Holowecki to keep his or her lawsuit alive, so long as he or she has filed something with the agency that might arguably be construed as a request for the EEOC to act.