The Supreme Court Takes a Broad Approach in Interpreting the Age Discrimination in Employment Act:
By JOANNA GROSSMAN
|Tuesday, Mar. 04, 2008|
Last week, the Supreme Court issued an important Age Discrimination in Employment Act (ADEA) opinion, Federal Express Corp. v. Holowecki. Specifically, the Court considered whether a plaintiff had complied with the necessary procedural formalities required under the ADEA before filing a lawsuit.
The opinion is quite significant in that it departs both in tone and substance from recent anti-plaintiff rulings in employment discrimination cases. It is thus a welcome sign of at least a modicum of commitment on the Court's part to enforcing the civil rights laws. I previously wrote about the case when the Court granted review; in this column, I'll analyze its opinion.
Federal Age Discrimination Law: The Nuts and Bolts
The federal ADEA was enacted in 1967 - as a parallel statute to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, ethnicity, color, religion, and sex. The ADEA prohibits employers from discriminating against workers who are 40 and over on the basis of their age.
The ADEA's structure is very similar to Title VII's. Among other similarities, both statutes require employees aggrieved by discrimination to first file an administrative complaint with the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit. The EEOC is then supposed to investigate complaints and attempt informal conciliation between the employee and employer. At the end of the day, the EEOC can decide to bring a lawsuit on the employee's behalf (which it does in only a small percentage of cases), but most of the time, it steps aside so the employee can pursue her own lawsuit.
The administrative and judicial processes do not always work well in tandem. For example, in many cases, the EEOC never investigates or takes any meaningful action, yet, meanwhile, the plaintiff's ability to pursue judicial remedies is stalled. The two processes also are accompanied by confusing and unclear time requirements - which led to the Holowecki case the Court just resolved.
Under the ADEA (as under Title VII), an employee must file an EEOC charge within either 180 or 300 days of when the unlawful employment practice occurred. (The difference between the two possible time periods depends on whether he first files a charge with a state fair employment agency that has entered into a work-sharing agreement with the EEOC).
Under the Supreme Court's recently elucidated "discrete act" rule, the applicable period begins when an employer takes an adverse act against the employee, such as firing, demotion, or imposing a discriminatory wage. (I have written in previous columns such as this one, co-authored with Deborah Brake, about the pressures placed on employees by this rule in the Title VII context.)
Then, once an employee has filed a "charge" with the EEOC, the ADEA imposes a mandatory 60-day waiting period (described at 29 U.S.C. § 626(d)), during which time the employee cannot file a lawsuit. After the EEOC receives a charge, the ADEA mandates that it must notify the employer and initiate conciliation efforts with the employer. The purpose of this period is to allow the EEOC to undertake the investigatory and conciliatory efforts outlined in the statute and regulations.
The Dispute in Holowecki: A Technical One Over Whether a Plaintiff Filed Her Suit Too Soon
The question in Holowecki is whether the plaintiff filed her lawsuit too soon - without honoring the 60-day statutory waiting period. The confusion in this case - and in many similar cases that have reached the federal appellate courts in recent years -- arises from the definition of "charge".
The plaintiffs here are current and former FedEx couriers over the age of 40. They filed suit to challenge two new programs implemented by FedEx to make its workforce "more productive." Under these programs, couriers' compensation and continued employment turn on performance standards like, for example, the number of stops per day made by a courier. The plaintiffs allege that these programs are part of an intentional plan by FedEx to force older couriers out of the company before they reach retirement age. If true, this would be actionable age discrimination by FedEx. But first, it must be determined whether this suit was timely filed; if not, it must be dismissed.
In Holowecki, the Court considered, in particular, the timeliness of a lawsuit filed plaintiff Patricia Kennedy. Kennedy had filed something with the EEOC called "Form 283: Intake Questionnaire," to which she attached a 6-page sworn affidavit detailing her allegations of discrimination. Then, more than 60 days later, she filed her lawsuit. After that, she filed a more formal charge with the EEOC.
FedEx moved to dismiss her lawsuit on the grounds that the Intake Questionnaire and affidavit did not constitute a "charge alleging unlawful discrimination," and thus that the 60-day post-charge waiting period had not even begun to run when Kennedy filed her suit.
Ultimately, however, the Court held, in a 7-2 opinion authored by Justice Kennedy, that the Intake Questionnaire and accompanying affidavit constituted a "charge" for purposes of calculating the no-lawsuit waiting period.
What is a "Charge" Under the ADEA? The Relevant Regulations
Though the ADEA has rules that turn on the timing of a "charge," it never provides a definition. There are, however, two relevant EEOC regulations. The EEOC is empowered to adopt regulations under the ADEA; whether courts defer to those regulations turns upon what the regulations purport to accomplish and how reasonably they do so. The problem, here, however was not that the regulations were unreasonable. It was that they do not provide a clear answer to the question of what constitutes a "charge" under the ADEA.
One regulation (found at 29 CFR § 1626.3) defines "charge" as "a statement filed with the [EEOC] 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." A second regulation (found at 29 CFR § 1626.8(a)) identifies five pieces of information that a "charge should contain," including details like the name and address of the complainant and employer, the number of employees maintained by the employer, and a statement of fact describing the alleged discriminatory acts. And a third regulation (found at 29 CFR 1626.6) states that a "charge" is "sufficient" if it is "in writing and name[s] the prospective respondent and . . . generally allege[s] the discriminatory act(s)."
The Three Possible Rules the Supreme Court Considered Imposing
Considering these three regulations together, along with the purpose of the charge-filing and waiting period requirements, the Court had to decide whether an Intake Questionnaire alone, or in conjunction with an affidavit detailing the alleged discrimination, could constitute a "charge".
Three possible rules were proposed to the Court. First, FedEx argued in its brief that an Intake Questionnaire cannot constitute a "charge" unless the EEOC acts upon it. Second, some appellate courts had ruled in similar cases that an Intake Questionnaire could constitute a charge as long as it made clear the complainant's intent to "activate the EEOC's enforcement processes." Finally, Patricia Kennedy argued that all completed Intake Questionnaires constitute charges.
The Court adopted a variation of the middle-of-the-road position the appellate courts had chosen, affirming the ruling of the court of appeals in this case. Not all documents that include the name of the employer and a description of the acts are sufficient, the Court said, as one of the regulations might have suggested. On the other hand, the Court made clear that not all charges need to be letter-perfect. Ultimately, the Court essentially adopted the standard advocated by the EEOC (put forward in this litigation by the Solicitor General as amicus curiae):
"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 emphasis is thus not on the particular form the documents take, but on whether they serve the purpose intended by the statutory requirement: to give the EEOC the opportunity to notify the charged party (that is, the employer) and initiate conciliation between the parties. Whether the EEOC has the time, resources, or inclination to use that opportunity should not be held against the plaintiff, as the standard urged by FedEx would have done. As the Court concluded, it "would be illogical and impractical to make the definition of a charge dependent upon a condition subsequent over which the parties have no control."
Applying its standard to the case at hand, the Court concluded that Kennedy's questionnaire and affidavit were sufficient to constitute a "charge". Among other points in her favor were the detailed nature of the allegations provided in the affidavit, and a request at the end to "[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" by the new policies. A reasonable observer, the Court concluded, would understand these documents as a request for EEOC action. Thus, the documents constituted a "charge"; Kennedy's filing them with the EEOC started the 60-day clock ticking; and she was timely in filing her lawsuit after that period had expired.
The Practical Meaning of the Court's New Standard
What will the Court's new standard mean in practice, for employees seeking to preserve their right to sue?
First, it is important to recall the Court contemplates under the standard it adopted that a variety of different documents might satisfy the charge-filing requirement, rather than just the single EEOC form designated for that purpose. Thus, this standard will avoid unfairly penalizing laypeople who do their best to navigate the system without a lawyer, as long as they get their message across to the EEOC. It accordingly comports with other areas of law where pro se litigants (that is, parties representing themselves) are held to lower pleading standards in pursuing claims.
But, still, not everything will qualify: More than half of the employees who contact the EEOC do not ultimately file a "charge"; they seek information or assistance of the agency, but never formalize their grievance. The Court thus worried that Kennedy's proposed standard - that all Intake Questionnaires are "charges" - might actually be detrimental to employees, who might avoid seeking assistance from the EEOC because any information would trigger the EEOC's mandatory duty to notify the employer and seek conciliation, and thus "out" the employee as having raised an issue regarding the employer.
Second, and also importantly, the new test does not turn on whether the employee subjectively intended to trigger EEOC action. All that is required is that the documents must make clear to a reasonable observer that the complainant seeks EEOC enforcement. Although this may also open up the possibility that a few employees will inadvertently "out" themselves, it avoids the problem of having to assess employee testimony about what was intended. The court can instead simply look to the document the employee submitted.
Why This Decision Goes in the Right Direction
Beyond its effect on the procedures for pursuing age discrimination claims, this opinion is noteworthy for two other reasons.
First, the Court goes to great lengths to defer to the EEOC's practice and position on this issue, even though the regulations the Commission drafted are admittedly ambiguous and incomplete. This is definitely a good thing: The Court surely should be showing the agency charged with implementing the statute this kind of deference. In prior cases, however, including the recent ruling in Ledbetter, which I discussed in a prior column co-authored with Deborah Brake, the Court has demonstrated complete and utter disregard for the EEOC's interpretation of anti-discrimination laws.
Second, the Court openly acknowledges an important reality of federal anti-discrimination laws: These laws set up a "remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process." For this reason, an overly formalistic approach to procedural requirements can effectively deprive many employees of their substantive rights. Justice Kennedy acknowledged this risk in Holowecki, warning that the "system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes." Given recent cases in which the Court has shown little regard for this fact, its newfound awareness, as represented by the laudable Holowecki decision, is a welcome development.
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