ACSBlog: The Blog of the American Constitution Society

So far this Term the Supreme Court has granted review in five employment discrimination cases. On November 6, the Court hears oral argument in the first of these, Federal Express Corporation v. Holowecki. Holowecki requires the Court to decide what constitutes a “charge” for purposes of satisfying a variety of deadlines under federal anti-discrimination law that determine whether a worker’s lawsuit can proceed. Holowecki thus provides another opportunity for the Court to interpret statutory procedural requirements either to enhance or deny workers’ meaningful ability to assert their civil rights. 

The Age Discrimination in Employment Act (ADEA) requires an aggrieved individual to file a “charge” of unlawful discrimination with the EEOC within 180 or 300 days (depending on the jurisdiction) of the alleged discriminatory act and at least 60 days before initiating an ADEA lawsuit in court. It further requires the EEOC, upon receiving a “charge,” to notify the employer of the accusations against it and to begin an investigation of those claims. The statute itself does not include a definition of the term “charge.” The EEOC’s regulations require a “charge” to be submitted in writing, and to name the prospective respondent and generally describe the alleged discrimination. 

In December of 2001, Patricia Kennedy submitted an intake questionnaire and a notarized affidavit to the EEOC, alleging that Fed Ex had engaged in systemic discrimination against older workers by, among other things, disparately disciplining older couriers for failing to meet performance standards in an effort to force them from their jobs. On that questionnaire, she indicated her consent that the EEOC identify her to Fed Ex as the origin of the complaint. The EEOC, however, did not notify Fed Ex of her submission nor did it begin an investigation of her claims. In April of 2002, Ms. Kennedy and 13 other workers filed suit in federal court, alleging that Fed Ex had violated the ADEA and various state laws prohibiting age discrimination.

The trial court granted Fed Ex’s motion to dismiss, ruling that Ms. Kennedy did not file a timely “charge” as required before initiating suit. The Second Circuit reversed, holding that Ms. Kennedy’s submission constituted a “charge” for ADEA purposes because it both included the information required by the EEOC’s regulations and demonstrated that she sought to “activate the [EEOC’s] administrative investigatory and conciliatory process.” In so holding, the Second Circuit adopted the test imposed by several other circuits that characterizes an individual’s submission to the EEOC as a “charge” so long as it not only complies with the agency’s regulations as to form and content but also is “of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the Act’s machinery.”

This case thus hinges on what constitutes a “charge” for purposes of satisfying the federal anti-discrimination statutes’ various time limits. The parties and their amici propose three different definitions. 

Fed Ex urges that a “charge” be defined in terms of the response it elicits from the EEOC. Under this view, a submission is only a “charge” if it successfully activates the EEOC’s administrative machinery – i.e., when the EEOC notifies the employer of the filing and begins the agency’s investigation and conciliation processes. Fed Ex (along with a number of employer groups filing as amici) argue that such an interpretation is necessary to fulfill the ADEA’s goals of ensuring prompt notice to employers and encouraging voluntary resolution, rather than litigation, of discrimination claims. The Chamber of Commerce’s amicus brief reflects these concerns:  “In the context of ADEA actions, a standard that allows a claimant to file suit without notice to the employer places employers at risk of learning about the grievance well in excess of the congressionally prescribed statute of limitations.” 

In contrast, the plaintiffs (along with a number of civil rights organizations filing as amici) urge that an individual’s submission to the EEOC constitutes a “charge” so long as it complies with the EEOC’s regulatory requirements as to form and content – i.e., it must be in writing, it must identify the entity accused of discrimination, and it must describe in general the alleged discriminatory acts. They maintain that the EEOC’s reasonable regulations not only warrant Chevron deference as a reflection of agency expertise, but also appropriately focus on matters that are entirely within the worker’s control: the form and content of the submission.   Under this view, both fairness and sound public policy require that workers who comply with the EEOC’s regulations should not “forfeit their right to bring civil action if EEOC fails to carry out its statutory duty to notify the employer and attempt conciliation.”

The United States also filed an amicus brief in support of the workers, urging adoption of the Second Circuit’s definition of a “charge” as a submission that both satisfies the EEOC’s regulatory requirements and objectively indicates the individual’s intent to make a formal accusation of unlawful discrimination against the employer. The government maintains that the additional “objective intent” requirement ensures that individuals are not surprised to find that employers are notified of charges that they did not intend as formal accusations, enables the EEOC to preserve its resources by investigating only formal accusations, and protects employers from having to respond to submissions that fall short of such accusations.  The government further argues that Fed Ex’s position would “unfairly penalize private parties for agency mistakes and mean that the same submission could be treated differently based solely on agency conduct outside the complainant’s control.”

Holowecki is just the latest in a series of cases that require the Supreme Court to interpret procedural requirements in a way that will determine whether workers can effectively assert their substantive rights. The ADEA – like Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act -- already imposes onerous procedural barriers, such as an unusually short statute of limitations of 180 to 300 days (depending on the jurisdiction). The effects of those procedural obstacles have only been exacerbated by recent decisions like that in Ledbetter v. Goodyear Tire & Rubber Co., in which the Court held that the plaintiff had lost her right to challenge pay discrimination because she did not do so within 180 days of the initial pay-setting decision, even if she continued to suffer from unequal pay for years thereafter (in so holding, the Court rejected the EEOC’s earlier position that each paycheck that pays a woman less than a similarly situated man because of her sex is an act of discrimination that violates Title VII). 

In Holowecki, the Court must decide who -- workers or employers – should bear the burden of the EEOC’s failure to fulfill its statutory duties in response to an individual’s accusation of unlawful discrimination. This case thus offers the Court yet another opportunity to protect or constrain workers’ meaningful ability to assert their right to be free from job discrimination.