The U. S. Supreme Court has decided another one of its employment cases.  This one (Federal Express v. Holowecki) does provide somewhat more excitement than the one it decided yesterday.  Although Fed Ex loses this case filed under the Age Discrimination in Employment Act, the Court settles a long-standing question with a bit more clarity than was present in yesterday’s decision (although I’ll concede that’s a debatable point).

We’re all familiar with the need for an employee to file a charge of discrimination with the Equal Employment Opportunity Commission before being able to file suit in federal court.  We’re also familiar with what a charge is.  It’s something the EEOC sends you detailing the resons an employee is accusing you of discrimination.  But what if the EEOC doesn’t send you anything, even though the employee has completed the EEOC’s intake questionnaire and filled out an affidavit?  Well, that’s a bit of a problem, particularly since “charge” isn’t defined in the ADEA.  In this kind of situation, federal courts have provided a variety of definitions resulting in confusion.

In the Fed Ex case, an employee completed the intake questionnaire and affidavit claiming that the company was guilty of age discrimination.  The EEOC promptly did nothing.  The employee filed suit, which was dismissed because no charge had been filed.  On appeal to the Second Circuit Court of Appeals, the lower court’s decision was reversed, with the Second Circuit finding that the intake questionnaire completed by the employee and left with the EEOC amounted to a charge.

Fed Ex argued before the Supreme Court that since the intake questionnaire hadn’t been treated by the EEOC as a charge as evidenced by the EEOC’s failure to initiate its normal administrative proceedings, then the Court shouldn’t treat it as a charge either.  In a 7-2 ruling, the Court disagreed, finding that the ADEA doesn’t require the EEOC to take any action before an employee can file suit.  The law only requires the employee to file a charge of discrimination with the EEOC.  Under the EEOC’s own internal directives and regulations (on which the Court heavily relied), an employee is supposed to file documents requesting the agency to take remedial action.  When the intake questionnaire was combined with the affidavit, the employee in the Fed Ex case had requested remedial action from the EEOC and, thus, a charge had been filed. 

It seems to me that this was always a case hard for an employer to win, and I suspect most people will read the reports of the Court’s opinion in this case and conclude that it’s a fair result.  It’s not like the employee hadn’t done anything before proceeding into court.  Interpreting the law like Fed Ex wanted would have been too rigid.  That conclusion has a certain resonance that’s appealing.  However, while it’s difficult to see the Court cutting off the employee’s rights under the circumstances of this case, it places Fed Ex and any employer in a pickle.  The employee filed this charge on behalf of a bunch of employees who claimed age discrimination.  The employer was given no notice of the charge.  It had no opportunity to investigate the charge or to try to resolve it before suit was filed.  That doesn’t seem right either.

Perhaps Congress will amend the ADEA to specifically define charge, but I wouldn’t hold my breath.  What’s much more likely is for the EEOC to make changes to its internal directives and regulations to spell out the meaning of a charge in more detail.  But so what?  If the EEOC doesn’t  give you notice, whatever the employee has filed with the EEOC will still be considered a charge, and as an employer, you’ll just have to suck it up.  This case was perfectly designed for the result, no matter what it was, to be unsatisfactory to reasonable people the world over.