U.S. Supreme Court Adopts an Expansive Definition of What Can Be a "Charge" of Age Discrimination

Vladimir P. Belo
Bricker & Eckler LLP
March 2008

Full text of the Supreme Court Federal Express decision

On February 27, 2008, just one day after it announced a decision on the type of evidence allowed to be admitted in age discrimination cases, the United States Supreme Court decided another case that has an impact upon age discrimination lawsuits brought in the federal courts.

In Federal Express Corp. v. Holowecki, the Supreme Court addressed the issue of whether an "Intake Questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") can suffice as a "charge" of discrimination that sufficiently exhausts the complainant's obligation to pursue an administrative remedy prior to filing a lawsuit under the Age Discrimination in Employment Act ("ADEA").

In a 7-2 decision authored by Justice Kennedy, the Supreme Court held that an "Intake Questionnaire" can serve as a "charge" of discrimination within the meaning of the ADEA, at least when it contains some objective indication that the filer wants the EEOC to take action. With its decision, the Supreme Court allowed a lawsuit to move forward, even though the Intake Questionnaire in that case was not treated as a "charge" by the local EEOC field office in which it was filed. The decision may have a significant impact upon the way age discrimination claims are handled.

Background of the Federal Express Case

The Federal Express v. Holowecki case arose out of two programs instituted by FedEx in the mid-1990s that, according to FedEx, were designed to improve the productivity of its courier network. These programs tied the couriers' compensation and continued employment to certain performance standards. Fourteen current or former couriers over the age of 40 filed suit against FedEx in a New York federal district court, asserting that the programs were designed to force older workers out of the company and therefore violated the ADEA.

The question before the Supreme Court related to the timeliness of the lawsuit as to Patricia Kennedy, one of the 14 plaintiffs who sued FedEx. Kennedy had filed a formal charge of discrimination with the EEOC, on a "Form 5" issued by the EEOC, but had done so in May 2002, a month after the lawsuit was filed. FedEx moved to dismiss Kennedy's action on the basis that she had not complied with the ADEA's directive that no civil action may be commenced "until 60 days after a charge alleging unlawful discrimination has been filed" with the EEOC. (29 U.S.C. § 626(d)) Because Kennedy had filed suit before filing her formal Form 5 charge with the EEOC, FedEx argued that her suit was barred by her failure to exhaust her EEOC remedies, as required by the ADEA.

Kennedy opposed dismissal on the ground that she had filed a valid charge on December 11, 2001, more than 60 days before filing suit. Though Kennedy had not filed a "Form 5" charge at that time, she had filed an Intake Questionnaire on the EEOC-issued "Form 283." Along with the Intake Questionnaire, Kennedy also filed a signed Affidavit, in which she detailed the FedEx practices that she alleged to be discriminatory.

The Affidavit asked the EEOC 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 within their application of" the allegedly discriminatory programs applicable to couriers. The local EEOC office with which Kennedy filed the Intake Questionnaire and Affidavit did not treat the documents as a charge; thus, the agency did not inform FedEx of its filing, nor did it initiate conciliation proceedings to attempt to settle the matter without resort to litigation.

The district court dismissed Kennedy's complaint, deciding that the Intake Questionnaire and accompanying Affidavit did not constitute a "charge" under the ADEA. On appeal, the U.S. Second Circuit Court of Appeals disagreed and reinstated the lawsuit. The Second Circuit found that the Intake Questionnaire and Affidavit manifested Kennedy's intent to activate the EEOC's administrative process, and therefore should be treated as a "charge" within the meaning of the ADEA. The Supreme Court accepted FedEx's appeal to decide whether Kennedy's filing in December 2001 was a "charge."

The EEOC Weighs In for the Plaintiffs - and is Granted Deference by the High Court

The Supreme Court began its analysis with the recognition that Congress did not define the word "charge" in the ADEA. And though the EEOC regulations specify the content to be included within a "charge," the regulations likewise do not specifically define the term. The Supreme Court therefore had to glean the meaning of "charge" another way. Enter the EEOC.

Citing to an amicus curiae brief filed by the United States Government in the case, the Supreme Court recited the EEOC's view that "the proper test for determining whether a filing is a charge is whether the filing, taken as a whole, should be construed as a request by the employee for the agency to take whatever action is necessary to vindicate her rights." Moreover, the Court observed that the EEOC had adopted this position in various "internal directives" issued to the agency's field offices over the past several years. The Court interpreted these policy statements of the EEOC to be the agency's proposed definition of the term "charge" in both the statutory language of the ADEA and in the regulations implementing it.

Having found the EEOC's policy statements to be a guide to the interpretation of the term "charge," the Supreme Court went on to decide what weight to give them. Citing to established Supreme Court precedent governing the "measure of respect" accorded to an agency's interpretive statements, the Court found that EEOC's proposed definition of the term "charge" was entitled to deference. Accordingly, the Supreme Court held that a filing will be deemed a "charge" under the ADEA if, in addition to containing the minimal information set forth in the regulations, it can 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." In other words, if an objective observer would interpret the filer to be requesting the agency to act in response to the filing, the filing is a "charge" of discrimination that is sufficient to establish that a complainant has exhausted his or her administrative remedy with the EEOC.

The Supreme Court recognized that its ruling allows a broad range of documents to be treated as "charges" under the ADEA. The Court decided, however, that this result was consistent with the ADEA, which was designed (in part) to enable pro se litigants to easily invoke the remedial processes of the EEOC. While the Court acknowledged that a clearer rule may give more guidance and yield "more consistent results," the Court considered the adoption of such a rule to be a matter for the agency to decide in the first instance.

The Intake Questionnaire Was a Charge

After determining how to define "charge," the Court found little trouble in deciding that Kennedy's Intake Questionnaire and Affidavit satisfied the definition. Though the Intake Questionnaire itself belied characterization as a charge -- the wording of the questionnaire form strongly indicated that it was a "pre-charge filing" that did not request EEOC action in response -- the Court did not consider the questionnaire by itself. The Court found it significant that Kennedy also filed a detailed six-page Affidavit that "supplemented" the Intake Questionnaire. In the Affidavit, Kennedy asked the EEOC to "force Federal Express to end their age discrimination plan," a statement that the Court found to be a request for agency action.

Notwithstanding this Affidavit language, FedEx had argued that the Court should not construe the filing as a charge because of what FedEx considered to be its ambiguity in context. Pointing to other statements suggesting that Kennedy intended her Affidavit to be kept confidential, FedEx argued that she could not have expected the EEOC to treat it as a charge. The Supreme Court was unpersuaded, however, given the totality of Kennedy's filing with the EEOC. For example, Kennedy checked a box on the Intake Questionnaire that consented to disclosure of her identity to the employer and further consented to the disclosure of her Affidavit in a "formal proceeding." Accordingly, the Court deemed the "combination" of these factors to be enough to "bring the entire filing within the definition of charge" that the Court adopted.

Given its determination that Kennedy's filing satisfied its definition of the term "charge," the Court affirmed the judgment of the Second Circuit, thereby allowing Kennedy to proceed with the age discrimination lawsuit. Though the Court considered it "unfortunate" that the EEOC field office did not treat Kennedy's filing as a charge, and therefore deprived the employer of the opportunity of conciliation and settlement before a lawsuit was filed, the Court deemed the result unavoidable in this instance. The way to avoid future unavoidable consequences, the Court observed, was for the EEOC to establish a clearer, more consistent process.

Practical Impact of the Decision

The Supreme Court itself recognized a practical consequence of its decision -- it has effectively expanded the universe of documents that may be considered a "charge" of discrimination within the meaning of the ADEA. Accordingly, employers may expect to be notified by the EEOC of complaints filed with an agency about allegedly discriminatory practices, even when the complainant has not filled out, much less filed, the charge form that the EEOC customarily uses (i.e., the Form 5 issued by the EEOC). Because of the Supreme Court's pronouncement in the Federal Express v. Holowecki case, EEOC field offices might be more likely to err on the side of deeming a document to be a "charge," thereby expanding the scope of filings of which an employer will be notified and to which an employer may have to respond.

What's more, even in situations where the EEOC does not give an employer notice of a filing with the EEOC, the employer may find it more difficult to dismiss an ADEA lawsuit on the ground that the employee/plaintiff has not exhausted the "charge" requirement. Unless and until the EEOC heeds the Supreme Court's suggestion to implement clearer guidelines with respect to the requirements of a "charge," an ADEA plaintiff who has not filed a Form 5 charge may be able to invoke Federal Express v. Holowecki to keep his or her lawsuit alive, so long as he or she has filed something with the agency that might arguably be construed as a request for the EEOC to act.