Court defines ADEA charge permissively

HR Magazine, April, 2008 by Allen Smith

An intake questionnaire filed with the Equal Employment Opportunity Commission (EEOC) might constitute a charge under the Age Discrimination in Employment Act (ADEA), the U.S. Supreme Court decided on Feb. 27.

The attention that the case has brought to the issue of what exactly constitutes a charge already has resulted in a spike in the number of charges filed with the EEOC this fiscal year, said Don Livingston, an attorney with Akin Gump and a former general counsel with the EEOC.

After Federal Express Corp. adopted compensation programs tying couriers' compensation and continued employment to performance benchmarks, 14 current and former FedEx couriers over the age of 40 sued, claiming that the programs violated the ADEA. They claimed that the new pay programs were veiled attempts to force older workers out of the company before they became entitled to receive retirement benefits.

FedEx responded that the lawsuit was not timely filed because one plaintiff, Patricia Kennedy, had not first filed a charge with the EEOC, as required in order to exhaust administrative remedies.

The plaintiffs countered that Kennedy's intake questionnaire and accompanying affidavit constituted a charge.

FedEx disagreed. The intake questionnaire was not a charge when the EEOC's Tampa office did not treat it as a charge and never notified the employer, it argued. Since the EEOC did not treat the filing as a charge, the plaintiffs sued before the agency could initiate a conciliation with the employer.

The district court determined that no charge was filed and granted FedEx's motion to dismiss, but the 2nd U.S. Circuit Court of Appeals reversed.

On appeal, the Supreme Court upheld the 2nd Circuit decision.

An intake questionnaire may constitute a charge even if an individual does not subsequently file the EEOC's charge form if in addition to the information required by the EEOC regulations (i.e., an allegation and the name of the charged party), the filing can "reasonably be construed as a request for the agency to take remedial action to protect the employee's rights."

The benefits of administrative procedures--prompt notice of discrimination practices, a chance for the EEOC to investigate and opportunity for a company to quickly eliminate any problems through administrative means--all are undermined by the ruling, said Rae Vann, general counsel with the Equal Employment Advisory Council.

Under the ADEA, "litigation should be an avenue of last resort," Vann stated, but she predicted that this decision "will enable complainants and the EEOC to evade this important aim." (Federal Express Corp. v. Holowecki No. 06-1322.)