The U.S. Supreme Court yesterday reinstated an age discrimination case against an employer, even though the Equal Employment Opportunity Commission (“EEOC”) never notified the employer, before suit was filed, that one of the plaintiffs had earlier informed the EEOC about the alleged discrimination and urged the agency to force the employer to end it, and thus never gave the employer a chance to try to settle the claim before it was sued. Federal Express Corp. v. Holowecki, No. 06-1322 (Feb. 27, 2008).

The Age Discrimination in Employment Act (“ADEA”) requires an employee, at least 60 days before filing suit, to file a charge with the EEOC describing the discrimination and naming the responsible employer. That requirement is designed in part to give the employer prompt notice that a claim has been filed, and to allow the EEOC the chance to investigate and, if it believes the claim has merit, to try to persuade the parties to settle the claim before suit is filed.

In this case, one FedEx employee, Kennedy, filed an “intake questionnaire” and affidavit with the EEOC that explained what had happened to make her believe that FedEx had discriminated against her and others. Nearly five months later she sued FedEx, alleging that she and similarly situated employees had been subject to age discrimination. In the meantime, however, she never filed a formal charge of discrimination with the EEOC, nor did the EEOC ever notify FedEx that Kennedy had accused it of discrimination. Only after filing suit did Kennedy finally file an EEOC charge.

The district court dismissed Kennedy’s suit on the grounds that she had failed to file a charge at least 60 days before bringing suit. The U.S. Court of Appeals for the Second Circuit reversed, holding that the questionnaire and affidavit met the key requirements for a charge by naming the employer and generally describing the discriminatory acts, and thus, in the words of an EEOC regulation, reasonably reflected a “manifest intent” that a charge be filed. The court held that it would be unfair to dismiss Kennedy’s suit just because the EEOC never told FedEx about her claim.

The Supreme Court affirmed the Second Circuit’s decision reinstating the suit against FedEx. The Court held that Kennedy’s questionnaire and affidavit constituted a “charge” because, viewed objectively, they amounted to a request that the EEOC take remedial action to protect her rights or settle her dispute with FedEx. The Court rejected Fed Ex’s argument that Kennedy’s filings should not be deemed a charge because the EEOC itself did not treat them as one, given that it failed to fulfill its duty to notify FedEx and initiate efforts to conciliate the dispute. While the Court criticized the EEOC for that conduct, it described as “illogical and impractical” the employer’s position that employees should be punished for mistakes by the EEOC over which they had no control.

The Court nonetheless recognized that by having failed to notify FedEx about Kennedy’s filings, the EEOC had deprived both parties of a key opportunity mandated by the ADEA—a chance to try resolving the dispute before suit was filed. It noted that the lower court now hearing the case “can attempt to correct this deficiency” by staying the lawsuit to allow “an opportunity for conciliation and settlement.” The Court acknowledged that remedy was “imperfect” because the parties’ positions might be more rigid than if they had the chance to conciliate at the outset, but called that result “unavoidable.” The opinion concluded with an appeal that the EEOC revise its forms and procedures to avoid any future outcome of this sort. Indeed, even before yesterday’s decision, the EEOC said that it had tightened up its procedures to avoid similar mistakes going forward.