“What’s in a Charge?” Whatever the EEOC Says, That’s What!
March 3, 2008
Erika Royal- Ft Lauderdale
The Age Discrimination in Employment Act (ADEA) makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Before filing a civil action against his/her employer, an employee alleging age discrimination must first file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) within (depending on the jurisdiction) 180 or 300 days of when the alleged discrimination occurs. The employee must then wait 60 days after filing the charge at the EEOC to bring suit. After receiving a charge, the EEOC must promptly notify the employer of the charge and seek voluntary resolution of the claims.
The U.S. Supreme Court recently held that an intake questionnaire, accompanied by an affidavit from the aggrieved employee, was sufficient to constitute a “charge” under the ADEA, even though the employee did not use the EEOC’s standard charge form and the EEOC did not even tell the employer about the claim, let alone attempt voluntary conciliation. Federal Express v. Holowecki, 06-1322 (2/27/2008). The Court ruled that the EEOC’s enforcement position – that any document that sets forth a claim of discrimination and demonstrates the intent to invoke the agency’s procedures is sufficient to qualify as a charge – was entitled to the deference afforded to an administrative agency’s reasonable interpretation of its own regulations. The questionnaire and affidavit submitted by the plaintiff met the EEOC’s standard, the Court ruled. The fact that Federal Express’ interests were “given short shrift,” because it was not notified of the charge or given the opportunity to engage in the EEOC’s conciliation process, was noted by the Court, but did not change its decision. Instead, the Court held that the district court could attempt to remedy the deficiency by staying the proceedings to allow an opportunity for conciliation and settlement.
The Facts
Patricia Kennedy worked as a courier for Federal Express (FedEx). On December 3, 2001, Kennedy filed an EEOC Form 283 Intake Questionnaire and accompanying affidavit alleging that FedEx had instituted a number of policies and practices that discriminated based on age. She did not file an EEOC Form 5 Charge of Discrimination at that time. The EEOC did not assign a charge number to Kennedy’s filing, did not notify FedEx that it had received Kennedy’s Form 283 alleging age discrimination and did not attempt to conciliate Kennedy’s claim. On April 30, 2002, Kennedy filed a class-action ADEA suit on behalf of herself and others similarly situated. One month later, Kennedy submitted a Form 5 Charge of Discrimination to the EEOC.
The district court granted FedEx’s motion to dismiss the suit, ruling that Kennedy’s December 2001 filing did not constitute a “charge” under the ADEA. The Second Circuit, however, reversed, holding that Kennedy’s intake questionnaire and affidavit satisfied its twofold test for what constitutes a valid charge of discrimination. The Second Circuit found that Kennedy’s December 3 submission clearly had all of the required information and indicated her intention to “activate the ... machinery” of the EEOC. Her filing therefore met the requirements of the ADEA and the Second Circuit permitted her suit to go forward. The Supreme Court agreed and affirmed.
Why This Holding Is Important to Employers
This case demonstrates the Supreme Court’s continued willingness to defer to federal employment law enforcement agencies, like the EEOC or the DOL, in the case of regulatory ambiguity. Further, post-Holowecki, an employer will have a more difficult time getting an ADEA case dismissed because of a technical or procedural deficiency, such as the failure to meet the charge-filing requirement. More importantly, the Supreme Court’s holding means that an employer can be sued under the ADEA without any prior notice of the claim or the charge. Given that the time lapse between the incidents of alleged discrimination and the filing of a lawsuit can be substantial, this lack of notice can impair an employer’s ability to adequately prepare for and defend the resulting suit, as witnesses’ memories fade and documents become harder to locate. The fact that, under circumstances similar to those present in Holowecki, an employer-defendant may request that a court stay proceedings to allow it to engage in the conciliation process may provide little consolation given that, once litigation has commenced, conciliation may be more difficult to achieve.
On the bright side for employers, however, this holding likely will not apply to lawsuits brought under Title VII or the Americans with Disabilities Act, as those statutes permit a plaintiff to file suit only after receipt of a notice of right to sue from the EEOC (unlike the ADEA which allows a plaintiff to sue 60 days after filing a “charge”).
For more information, email Erika Royal at erika.royal@hklaw.com or call toll free, 1.888.688.8500.