The Supreme Court Considers a Procedural Roadblock to Recovery Under the Age Discrimination in Employment Act

By JOANNA GROSSMAN

Tuesday, Oct. 30, 2007

The U.S. Supreme Court will hear argument next week in Federal Express Corp. v. Holowecki. The case considers what procedures a plaintiff must follow in order to successfully invoke her rights under the Age Discrimination in Employment Act (ADEA) - the federal law that prohibits employers from discriminating against employees aged 40 and over on the basis of age.

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The issue raised is narrow, but it taps into a persistent tension in federal anti-discrimination law between giving plaintiffs the ability to claim their rights, and protecting employers, sometimes unduly so, from having to defend themselves against stale or otherwise procedurally imperfect claims.

The Plaintiffs' Claim, and the Reason It May Be Untimely

The plaintiffs in this case filed a complaint in federal court in 2002, alleging that their employer, FedEx, had discriminated on the basis of age through a variety of performance policies.

So, did FedEx, in fact, discriminate on the basis of age? Not so fast. Before these claims can be reviewed on the merits, courts must first rule on the current dispute: Did the plaintiffs satisfy the "administrative exhaustion" requirements imposed by statute? (In other words, did they "exhaust" - that is, make full use of - their administrative remedies, yet find no satisfaction, before they resorted to suing?)

Like Title VII -- the federal law prohibiting employment discrimination on the basis of other characteristics like race, ethnicity, and sex -- the ADEA requires plaintiffs to first file a charge with the Equal Employment Opportunity Commission (EEOC) before pursuing their claims in court. This requirement is designed to give the EEOC - the agency charged with implementing most federal anti-discrimination laws - the chance to facilitate a voluntary resolution between the parties.

Under the ADEA, an EEOC charge must be filed within either 180 or 300 days of the alleged discriminatory acts (the actual deadline depends on whether the state has an analogous statute and an agency that shares work with the EEOC), and the subsequent lawsuit cannot be filed until at least 60 days later.

The EEOC may or may not issue a right-to-sue letter (something the EEOC is required to do under Title VII if it decides not to take the case on behalf of the employee). However, if the EEOC does issue a right-to-sue letter, then the charging party must file any subsequent lawsuit within 90 days of receiving that letter.

Here, Patricia Kennedy, a FedEx employee, filed an intake questionnaire (Form 283), supported by an affidavit outlining her claims, on December 3, 2001; filed a lawsuit in federal court on April 30, 2002; and filed an EEOC charge (Form 5) on May 30, 2002.

After the questionnaire was filed, the EEOC did not notify FedEx of her claim, nor did it attempt to bring about a voluntary resolution of the claims, as it is supposed to do.

Kennedy was joined by several other employees in her lawsuit. This is not unusual: The ADEA has been construed to permit employees to "piggyback" on the EEOC charge of another employee at the same company if "their claims arise out of similar discriminatory treatment in the same time frame." However, the one underlying charge must comply with several rules of timing in order to preserve the right to sue in federal court.

FedEx moved to dismiss their complaint, arguing that it was filed too soon -- without waiting the requisite 60 days after filing a charge with the EEOC. The district Court agreed with FedEx, and dismissed the lawsuit for failure to file a timely EEOC charge.

Kennedy argued in response, however, that her earlier-filed intake questionnaire was itself sufficient to constitute a "charge" with the EEOC, and thus her subsequent lawsuit, filed more than four months after she filed her intake questionnaire, was timely.

The District Court agreed with FedEx, and dismissed the plaintiffs' claims. The U.S. Court of Appeals for the Second Circuit reversed, however, ruling that Kennedy's intake questionnaire was sufficient.

Competing Views: What is an "EEOC Charge"?

Is an EEOC intake questionnaire as good as an EEOC "charge," under the ADEA? Kennedy's - and her piggybackers' -- claim is only valid if it is. This is the question the Supreme Court will consider.

This case will turn on the Court's interpretation of what constitutes a proper "charge." In its brief, FedEx argues that the ADEA imposes a set of requirements upon the charging party and the EEOC that must be met in order for a lawsuit to proceed. According to this argument, if the EEOC fails to notify the employer that a charge has been made, then a "charge" has not been validly filed.

The EEOC does, however, admit the possibility of a "fairness exception," for cases in which the EEOC's failure to act was not the fault of the employee. Yet the EEOC also insists that such an exception would not apply here, since it says Kennedy knew that her intake form did not constitute a formal charge. After all, she later filed an actual charge; why would she do so, the EEOC asks, if she thought the intake form itself was a charge?

But the issue is not that clear-cut. The ADEA requires the filing of a "charge" with the EEOC, but does not define the term. The EEOC has adopted implementing regulations, which, among other things, refer to the charge as a "writing" that names the employer and generally describes the allegedly discriminatory acts. The regulations also state that the charge "should contain" contact information for both parties, as well as a "clear and concise statement of the facts, including pertinent dates, constituting the alleged unlawful employment practices." Someone reading this definition might reasonably believe an intake questionnaire counts as a "charge."

A Question that Has Divided Federal Appeals Courts - Leading the Supreme Court to Step In

Many federal courts have grappled with the "What is an EEOC charge?" question. A few have said that nothing other than a formal charge can constitute a "charge" within the meaning of the ADEA. Yet most federal Circuits have concluded that there are at least some circumstances when another document or form can constitute a charge. Some Circuits, for example, have adopted a requirement that the writing must display the employee's "manifest intent" to pursue a claim under the statute.

The Second Circuit in Holowecki followed this approach. The federal appellate court held that a submission to the EEOC is a "charge" if two requirements are met: (1) it complies with EEOC regulations, which state that a charge must name the employer and generally describe the discriminatory acts; and (2) it manifests, in the eyes of a reasonable person, the employee's intent to file a charge.

Kennedy's intake form met both of these requirements and was, therefore, held by the Second Circuit to be sufficient to "activate the . . . machinery" of the EEOC.

This approach ensures that the EEOC has notice of the claimant's intent to pursue her rights and the opportunity "to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of the statute through informal methods of conciliation, conference, and persuasion," as the regulations direct. The fact that the EEOC fails to utilize this opportunity, the Second Circuit reasoned, should not be held against the claimant by stripping her of the right to pursue a private lawsuit.

Kennedy argues that the EEOC's regulations are appropriate - and deserving of deference. The Solicitor General filed an amicus brief, in support of Kennedy's side, making this same argument. (In contrast, in the prior Ledbetter v. Goodyear Tire & Rubber employment discrimination case, about which I co-authored an earlier column with Deborah Brake, the Solicitor General did the opposite, filing on the side of the employer and disavowing the longstanding position of the EEOC. Thus, this filing is a welcome one.)

The Solicitor General's brief concludes that "when the [EEOC] regrettably drops the ball in handling a timely submitted charge, defendants are not entitled to a windfall in the form of the dismissal of a potentially meritorious age discrimination suit."

Kennedy echoes this argument as well, observing that plaintiffs should not suffer for the failures of the EEOC. Often, the EEOC takes no action on charges before it; plaintiffs should not be penalized for something so ordinary and beyond their control.

Procedural Roadblocks: Don't Lose the Forest for the Trees

This case might not have seemed significant at all, were it not for the Court's decision last term in the Ledbetter employment discrimination case -- which, again, is the decision mentioned above where the Solicitor General sided against, and the Court ruled against, the employee.

In Ledbetter as Deborah Brake and I have written, the Court took a strict view of the statute of limitations in pay discrimination cases, thus virtually ensuring that many meritorious plaintiffs will be deprived of Title VII's remedies because of a procedural roadblock.

As we have also written, Ledbetter is only the tip of the iceberg in terms of procedural barriers to substantive remedies under federal anti-discrimination laws. The combination of strict procedural doctrines, limited protection for retaliation, and the empirical realities as to how difficult it is for employees to perceive and report discrimination, means that these laws offer far less than the robust protection we might assume.

A case like Holowecki, though narrow in scope, gives the Court opportunity to further cordon off meaningful access to civil rights remedies, as it did in Ledbetter. Yet instead, by ruling in favor of the plaintiffs, the Court could opt to adhere to the spirit in which such laws were enacted.

The Second Circuit's approach is a sensible one - and should be affirmed. Let's hope that in this case, where the Solicitor General sided with the plaintiffs, the Court will side with them too.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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