Federal Express Corp. v. Holowecki, --- S.Ct.----, No. 06-1322, 2008 WL 508018 ( U.S. Feb. 27, 2008), involved a claim of age discrimination brought by fourteen ( 14) current and former couriers over the age of forty against their employer, Federal Express Corporation (“ FedEx”), under the Age Discrimination in Employment Act (“ADEA”). Id. at *4. FedEx implemented two new programs which tied the couriers’ compensation and continued employment to performance benchmarks, for instance, the number of daily stops. After these programs were implemented, a courier over the age of forty named Kennedy, filed with the Equal Employment Opportunity Commission (“EEOC”), “a Form 283 Intake Questionnaire and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA.” Id. at *1. Thereafter, Kennedy and other employees brought an age discrimination claim in the United States District Court for the Southern District of New York alleging that these policies “ were veiled attempts to force older workers out of the company before they would be entitled to receive retirement benefits.” Id. FedEx moved to dismiss the case alleging that Kennedy failed to file a charge of unlawful discrimination “with the EEOC at least 60 days before filing suit, as required by 29 U. S. C. §626(d).” Id. Respondent contended that her submission of EEOC Form 283 and her attachment of an affidavit detailing the discriminatory practices constituted a valid charge. Id.

The District Court granted FedEx’s motion to dismiss finding that Kennedy did not submit a valid charge. Kennedy appealed and the Second Circuit Court of Appeals reversed the decision. Id. at *5. The Supreme Court granted certiorari to consider two issues: (1) “What is a charge as the ADEA uses that term?” and (2) “Were the documents Kennedy filed in December 2001 a charge?” Id.

The Supreme Court first defined what a charge was since the statute did not. Kennedy maintained that her documents constituted a valid charge based on EEOC regulations 29 CFR §1626.8(b) and 29 CFR §1626.6 which, when read together, state that a “charge is sufficient when the Commission receives … a written statement” that “name[s] the [employer] and … generally allege[s] the discriminatory act(s).” Id. at *6. The EEOC in its amicus brief took a different position stating “that the regulations do not identify all necessary components of a charge and it follows that a document meeting the requirements of §1626.6 is not a charge in every instance.” Id. The Supreme Court in agreeing with the EEOC’s position gave deference to the EEOC’s interpretation of its regulations, relying on Auer v. Robbins, 519 U. S. 452 (1997). Id. However, the Supreme Court still had to decide what additional components are needed for a valid charge. The Supreme Court concluded that “in addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must 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.” Id. at *9. FedEx urged the Supreme Court to rule that a charge is not valid unless and until the EEOC “fulfill[ed] its mandatory duty to notify the charged party and initiate a conciliation process.” Id. at *11. The Supreme Court rejected this position calling it “illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control.” Id.

The Supreme Court then evaluated if Kennedy’s documents met the definition of a charge. The EEOC argued that her documents met the definition of a charge under the ADEA. Id. FedEx’s first argument was that the documents were not a charge since there was “no request for the agency to act.” Id. at *12. The Supreme Court stated that EEOC Form 283 will not always be sufficient to constitute a charge, but here EEOC Form 283, along with the detailed affidavit which on the last page included Kennedy asking 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 Best Practice/High-Velocity Culture Change ,” was a charge and did request the EEOC to act. Id. FedEx’s second argument was that as “Respondent intended the affidavit to be kept confidential, she could not have expected the agency to treat it as a charge.” Id. The Supreme Court disagreed with FedEx, explaining that Kennedy “did not request the agency to avoid contacting her employer” and she “checked a box on the Intake Questionnaire giving consent for the agency to disclose her identity to the employer.” Id. Finally, FedEx argued that because a formal charge was not filed by Kennedy until after the District Court complaint was filed, EEOC Form 283 was not to be intended as a charge. The Supreme Court again disagreed with FedEx stating that the only thing that matters is whether EEOC Form 283 was a charge, and if it was a charge, then conduct afterward would not “nullify” it. Id.

In affirming the decision, the Supreme Court stated the policy that “documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies.” Id. at *13. The Supreme Court also acknowledged the harsh treatment that FedEx was given since “it was not notified of Respondent's complaint until she filed suit” but was hopeful that the court, in which this case is ultimately before, could “attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement.” Id.

The Supreme Court acknowledged that it was the EEOC’s responsibility to establish a more “clearer” and consistent” charge-filing process “to reduce the risk of further misunderstandings by those who seek its assistance...” Id. Ultimately, the Supreme Court placed the burden on the EEOC and not itself to define what is a charge of discrimination under the ADEA.

Glenn Duhl is a partner with Siegel, O’Connor, O’Donnell & Beck, PC and represents management. He is also Chair of the Publications Subcommittee and Co-chair of the Worker Dislocation Subcommittee of the ABA Labor & Employment Law Section’s Employee Rights and Responsibilities Committee.