On Wednesday, a divided Supreme Court ruled that the ADEA requirement for filing a Charge with the EEOC at least 60 days before initiating an ADEA lawsuit can be satisfied by the mere filing of an intake questionnaire and affidavit with the EEOC even when the EEOC never created a Charge form, never notified or served a Charge or other document with the Charging Party’s allegations to the employer and the plaintiff never signed or filed an actual Charge form with the EEOC. Federal Express Corp. v. Holowecki, No. 06-1322 (2/27/08).
The ADEA – at 29 U.S.C. § 626(d) – provides that “[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the” EEOC. The ADEA also requires the charge to be filed by the employee within so many days of the unlawful employment practice. Once the Charge has been filed, the ADEA requires the EEOC to “promptly notify all persons named in such charge as prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful practice by informal methods of conciliation, conference, and persuasion." 29 U. S. C. §626(d). However, the ADEA does not define “charge.”
In this case, the plaintiff employee completed and submitted an Intake Questionnaire to the EEOC on December 11, 2001, along with a signed affidavit setting forth her allegations in more detail. The EEOC did not promptly process the Intake Questionnaire, prepare a formal Charge form or notify the employer of the plaintiff’s allegations or serve it with a Charge. Nonetheless, the plaintiff -- along with several other employees – filed her ADEA lawsuit on April 30, 2002. Only then did the EEOC prepare, file and serve a Charge on the employer. The trial court dismissed the plaintiff’s claims on the grounds that her Intake Questionnaire was not a “charge” as required by the ADEA. The Second Circuit Court of Appeals reversed and, recognizing a conflict among the various Circuits on this issue, the Supreme Court affirmed the appellate court.
The Court found that the EEOC regulatory definition of Charge was scattered among several regulations and was vague. For instance, “one of the regulations, 29 CFR §1626.3 . . . says: "charge shall mean a statement filed with the Commission by or on behalf of an aggrieved person which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act." Another regulation – § 1626.8(a) indicates that a "charge should contain": (1)-(2) the names, addresses, and telephone numbers of the Charging Party and the Respondent; (3) a statement of facts describing the alleged discriminatory act; (4) the number of employees of the charged employer; and (5) a statement indicating whether the charging party has initiated state proceedings. Yet another regulation -- §1626.8(b) – limits the prior requirements “by stating that a charge is ‘sufficient’ if it meets the requirements of §1626.6--i.e., if it is ‘in writing and ... name[s] the prospective respondent and ... generally allege[s] the discriminatory act(s).’" The EEOC asserted on its own behalf that the regulations governed only the filing of a Charge and did not define Charge itself or what it must contain. While the EEOC asserted that the plaintiff’s document satisfied the requirement of a Charge, not all documents necessarily would or should do so. In particular, the EEOC expressed concern with interpreting all documents as Charges if they contain the name of an employer and allegations of discrimination because some employees merely want information from the EEOC and do not want their employer to be notified of the allegations.
While the Court recognized the EEOC’s deficiencies in administering the ADEA, it still deferred to the EEOC’s greater familiarity with the statute. The Court concluded “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.”
The Court refused to condition “charge” on being served on the employer and giving the employer the chance to conciliate or mediate the allegations before the employee gained the right to file an ADEA lawsuit. “The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action.” Moreover, it would be impractical and unfair to the employee to condition a “charge” on the EEOC taking action after the employee has done everything he or she is required to do by the statute when the employee has no control over the EEOC.
Applying this new standard to the facts of the lawsuit, the Court found that the plaintiff’s Intake Questionnaire by itself did not satisfy the new test because, although it provided most of the necessary information, it did not request the EEOC to remedy the alleged discrimination. However, the affidavit which was attached to the Intake Questionnaire ended with the sentence: "[p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application of Best Practice/High-Velocity Culture Change." Taken together, the Court construed the Intake Questionnaire and attached affidavit as satisfying the “charge” requirement. The Court did so even though the plaintiff had specifically requested the EEOC to keep the affidavit confidential until formal proceedings were commenced because the plaintiff had also authorized the EEOC in the Intake Questionnaire to notify her employer.
Even though the Court deferred to the EEOC’s administration of the plaintiff’s claim, it also found that the EEOC gave “short shrift” to the employer’s interests as set forth in the ADEA because it was given no notice of the employee’s Charge before she filed suit. “The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset.” Of course, that is an understatement since any employer faced with a lawsuit knows that it is much easier to resolve the dispute at the agency stage than after the employee’s attorney had taken control and has expended significant sums in preparing the lawsuit. The Court also encouraged the EEOC to improve its regulations to avoid similar miscommunications in the future.
Employers may find little consolation in the dissent:
“Today the Court decides that a “charge” of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) is whatever the Equal Employment Opportunity Commission (EEOC) says it is. The filing at issue in this case did not state that it was a charge and did not include a charge form; to the contrary, it included a form that expressly stated it was for the purpose of ‘precharge’ counseling. What is more, the EEOC did not assign it a charge number, notify the employer of the complainant’s allegations, or commence enforcement proceedings. Notwithstanding these facts, the Court concludes, counterintuitively, that respondent’s filing is a charge because it manifests an intent for the EEOC to take ‘some action.’”
Insomniacs can read the full decision (and dissent by Justices Thomas and Scalia) at http://www.supremecourtus.gov/opinions/07pdf/06-1322.pdf.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
