On Wednesday, February 27, 2008, the United States Supreme Court held, in a 7-2 decision, that the proper test for determining whether documents filed with the EEOC constitute a 'charge' under the Age Discrimination in Employment Act ("ADEA") is whether the filing reasonably "should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights."

In Federal Express Corp. v. Holowecki, the plaintiffs claimed that Federal Express Corp. violated the ADEA by instituting two company-wide policies which plaintiffs allege were designed to separate older employers from the company before they qualified for retirement benefits. The district court dismissed the lawsuit on the basis that plaintiffs had failed to comply with the ADEA's requirement that "no civil action may be commenced by an individual under [the ADEA] until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission." The Second Circuit Court of Appeals reversed the lower court's decision and reinstated the lawsuit, holding that the EEOC intake questionnaire form and accompanying six-page affidavit filed in this case were sufficient to constitute a charge.

The Supreme Court, in its ruling, showed deference to the EEOC's interpretation both of the ADEA and its own regulations issued under that Act. The EEOC applies a "request-to-act" test to determine whether or not a particular filing constitutes a charge under the statute, and the Supreme Court's decision in this case puts its stamp of approval on that test. Therefore, the analysis for whether documents filed with the EEOC constitute 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 held that the intake questionnaire and affidavit filed with the EEOC in this case contained language which was sufficient to be considered as a request for the EEOC to take action.

The practical effect of the Supreme Court's decision in this case likely centers on the amount of deference that will be granted to the EEOC by lower courts regarding the interpretation of its own regulations and the effect of informal internal directives distributed within the EEOC. According to Federal Express Corp. v. Holowecki, these less formal communications can have an effect nearly rivaling that of formal agency regulations which have gone through the public notice and comment procedures. If that is indeed the case, then it becomes even more important for employers and their counsel to have knowledge not only of the discrimination statutes and the formally enacted regulations under those statutes, but of the EEOC's own interpretations of those statutes and regulations in order to fully understand the legal framework within which an employer is required to act and how to enforce its rights under the statute.