Client Bulletin #384
The U.S. Supreme Court recently had an opportunity to give some definition to the EEOC charge-filing requirement. Unfortunately, the Court let opportunity pass it by.
Before a current or former employee can sue under most federal anti-discrimination laws, he or she must meet certain administrative prerequisites, including filing a charge with the Equal Employment Opportunity Commission or an equivalent state agency. Otherwise, the claims will be subject to dismissal.
The laws do not define the term “charge,” and federal courts have had differing opinions as to what constitutes a charge. In Federal Express Corporation v. Holowecki, the Supreme Court attempted to answer what constitutes a “charge,” in the context of the Age Discrimination in Employment Act. The result is a disappointing decision that provides little definition and is unlikely to benefit either charging parties or employers.
In Holowecki, one of the plaintiffs had submitted an EEOC Intake Questionnaire form and a six-page affidavit detailing the alleged discriminatory employment practices, but she had not initially submitted a formal “charge” (which is a distinct form). Apparently because no true “charge” had been filed, the EEOC never notified FedEx of the plaintiff’s allegations.
After the plaintiff sued, FedEx moved to dismiss the plaintiff’s ADEA claims on the ground that she had not filed an EEOC charge and because FedEx had received no notice of the charge (or allegations). The district court agreed, and granted the motion.
The plaintiff appealed to the U.S. Court of Appeals for the Second Circuit (Connecticut, New York, and Vermont), which reversed the district court’s decision. FedEx petitioned to the U.S. Supreme Court, which agreed to review the Second Circuit’s decision.
The Supreme Court found the documents submitted by the plaintiff to the EEOC contained sufficient information to constitute a “charge,” and therefore, that her ADEA claim should not have been dismissed. To constitute a “charge,” a filing must include the names, addresses and telephone numbers of the charging party and employer; a statement of facts describing the alleged discriminatory acts; the number of employees of the employer; and a statement indicating whether the charging party has initiated state proceedings. In addition, the filing must be “reasonably construed” as a request for the EEOC (or other agency) to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the charging party.
The Supreme Court’s decision is disappointing on a number of levels. As Justice Clarence Thomas noted in his dissent (joined by Justice Antonin Scalia), “Today the Court decides that a ‘charge’ of age discrimination . . . is whatever the [EEOC] says it is . . . Today’s decision does nothing – absolutely nothing – to solve the problem that under the EEOC’s current processes, no one can tell . . . whether a particular filing is or is not a charge.” The Court’s definition of “charge” leaves a lot of room for individual interpretation, which means we can expect more division among the courts as to what constitutes a “request for remedial action.” Indeed, it is likely that this issue could be back before the Supreme Court for resolution in a few more years.
Even more troubling from a substantive standpoint is the fact that the Supreme Court decision, with its focus on the charging party’s efforts, provides no protection to the employer who is never notified of the charge and therefore has no opportunity to meaningfully participate in defense and conciliation. It is understandable that the Court would want to protect a charging party who made reasonable efforts to file a charge (although it was questionable whether the charging party in this case had intended to file one). However, this should not be done at the expense of the employer, who was in no way to blame for the failure to transform the “questionnaire” into a “charge” and who had no notice that a charge had even been filed against it. As Justice Thomas put it, “[T]he statutorily required notice to the employer and conciliation process will be evaded in the future as it has been in this case.”
Although this lawsuit arose under the ADEA, the same principle – or lack thereof – is expected to apply to claims involving similar charge-processing techniques (such as claims for discrimination based on race, sex, national origin, color, and religion under Title VII of the Civil Rights Act of 1964, and claims for disability discrimination under the Americans with Disabilities Act).
If you need assistance with labor and employment legal issues, please contact any member of Constangy’s Litigation Practice Group, or the Constangy attorney of your choice.
Constangy, Brooks & Smith, LLC has counseled employers, exclusively, on labor and employment law matters since 1946. The firm represents Fortune 500 corporations and small companies across the country. More than 100 lawyers work with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, South Carolina, North Carolina, Tennessee, Florida, Alabama, Virginia, Missouri, and Texas. For more information about the firm's labor and employment services, visit www.constangy.com, or call toll free at 866-843-9555.