For the second consecutive day, the U.S. Supreme Court has issued an important employment law decision. Today, in a 7-2 ruling, the high court held that submitting an "intake questionnaire" and a detailed affidavit to the Equal Employment Opportunity Commission (EEOC) is equivalent to filing a charge for purposes of the exhaustion of administrative remedies requirement under the Age Discrimination in Employment Act (ADEA). According to the majority: "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." Federal Express Corp. v. Holowecki, No. 06-1322, U.S. Supreme Court (February 27, 2008).
A group of FedEx couriers, all of whom were over the age of 40, alleged that the company used its performance standards to force out older workers. The trial judge dismissed the lawsuit for "failure to exhaust administrative remedies," but the Second Circuit Court of Appeals reversed this decision.
The Second Circuit held that the EEOC intake questionnaire and affidavit, which was filed by Patricia Kennedy within 300 days of the most recent alleged discriminatory action, constituted a timely charge - even though the EEOC neither properly notified FedEx nor investigated the charge. The questionnaire and affidavit (filed in December 2001) alleged systematic discrimination against older couriers. Kennedy filed a formal charge using EEOC Form 5 one month after the suit was filed in late April 2002. The ADEA permits a person to file suit 60 days after filing a charge and does not require the charging party to wait for a right-to-sue letter.
The ADEA does not define the word "charge." However, the Second Circuit noted, the agency's regulations interpreting the ADEA provide that the charge requirement has been met when "[the] EEOC receives a 'writing' (or information that an EEOC employee reduces to a writing) from the person making the charge that names the employer and generally describes the allegedly discriminatory acts." The Second Circuit further held that the writing must show that the person "seeks to activate the administrative investigatory and conciliatory process."
Six circuit courts have addressed whether an intake questionnaire may constitute a charge under the ADEA. The Second and Eleventh Circuits reached different conclusions in nearly identical ADEA suits seeking class status for older FedEx employees. The Third and Sixth Circuits have found that an intake questionnaire does not constitute a charge for purposes of the ADEA. The Seventh, Eighth and Eleventh Circuits have held that an intake questionnaire can substitute for a charge in limited circumstances. Based on these differing opinions, the U.S. Supreme Court granted review in June of last year.
Supreme Court Weighs In
In its ruling issued this morning, the Supreme Court agreed with the EEOC's position that a charge is filed when the employee requests some action. Specifically, the majority wrote: "In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge 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." While this position may lead to a wide range of documents being classified as charges, the Court noted, it is a matter for the agency "to adopt a standard giving more guidance to filers, making it clear that the request to act must be stated in quite explicit terms."
The majority then turned to whether the EEOC intake questionnaire and affidavit filed by Kennedy constituted a "charge" under the test articulated above. According to the Court, the intake form contained all of the information required by the regulations (i.e., employee's name, address, telephone number, etc.) and the affidavit included a statement asking the EEOC to "force [FedEx] to end [its] age discrimination plan." Kennedy consented to the EEOC disclosing the affidavit in a "formal proceeding." "[T]he combination of the waiver and [her] request in the affidavit that the agency 'force' the employer to stop discriminating against her," the Court wrote, "were enough to bring the entire filing within the definition of charge we adopt here." Thus, the Court upheld the Second Circuit's decision and directed the lower court to stay the proceedings to allow the parties an opportunity for conciliation and settlement.
Ogletree Deakins' shareholder Michael Fox noted: "Yesterday, the Supreme Court gave deference to a trial judge's decision on an evidentiary ruling; today, it's the EEOC's turn as the Court finds that the agency's decision to treat an unsworn intake questionnaire combined with an affidavit as a 'charge' is within their discretion. It did take quite a bit more explanation, a suggestion to the EEOC that it could do better, and lost two justices along the way. Justice Clarence Thomas dissented and was joined by Justice Antonin Scalia."
Fox continued: "To the extent that any hope remained that an employer could argue it was protected against a lawsuit because the EEOC failed to give it notice, that has been extinguished. Here, the company only learned about the charge when a suit was filed, a fact Justice Kennedy described as 'unfortunate' but obviously not irreparable."