Supreme Court ruling lowers bar for ADEA lawsuits

WASHINGTON—A Supreme Court decision last week that makes it easier for employees to sue their employers for alleged discrimination under the Age Discrimination in Employment Act could have been worse for employers, say employment law experts.

That's because the majority opinion in Federal Express Corp. vs. Paul Holowecki et al. made clear that the decision applied to ADEA cases, and enforcement mechanisms and statutory waiting periods for actions brought under the Civil Rights Act of 1964 and the Americans With Disabilities Act differ in some respects from those under the ADEA. Nevertheless, the Feb. 27 decision may mean more litigation, they warn.

The case involved an ADEA requirement that a plaintiff file a "charge"—which the high court found that the ADEA does not clearly define—at least 60 days before filing a discrimination lawsuit. When the Equal Employment Opportunity Commission receives the charge, it notifies the employer, investigates the allegations and offers to mediate.

The case began in 2001 when Patricia Kennedy, a FedEx courier, submitted a so-called intake questionnaire to the EEOC, providing information about allegations of age discrimination at her employer. The EEOC did not take action on the questionnaire, which FedEx argued does not constitute a charge as required to pursue an ADEA claim.

The next year, a group of current and former FedEx employees, including Ms. Kennedy, filed suit in a federal district court in New York, alleging that FedEx had initiated policies, such as performance standards, that effectively discriminated against older workers and thus violated the ADEA. Ms. Kennedy also filed a formal charge with the EEOC after she had initiated the suit. The district court dismissed the case because it found that the plaintiffs had not met the requirements for pursuing the action.

But in 2006, a three-judge panel of the 2nd U.S. Circuit Court of Appeals reversed the lower court, holding that the intake questionnaire satisfied the requirement that a charge be filed before a suit, even though the EEOC took no action on Ms. Kennedy's original questionnaire. FedEx appealed to the Supreme Court.

The Supreme Court rejected FedEx's argument by a 7-to-2 margin. Writing for the majority, Associate Justice Anthony Kennedy rejected the argument that the EEOC's failure to act upon a filing precludes a subsequent lawsuit. He called that argument "too artificial" a reading of the ADEA.

"The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action," wrote Justice Kennedy. He added that because the filing of a charge determines when the ADEA's time limits and procedural mechanisms begin, "it would be illogical and impractical to make the definition of 'charge' dependent upon a conditionÖover which the parties have no control."

In a dissent, in which he was joined by Associate Justice Antonin Scalia, Associate Justice Clarence Thomas wrote that in its decision, the majority had decided that a charge of age discrimination under the ADEA "is whatever the EEOC says it is."

An employment law expert agreed. "A filing charge is whatever the EEOC says it is and when the EEOC says it's been filed. It's completely at the agency's whim," said Robin Conrad, executive vp at the National Chamber Litigation Center in Washington, which filed a brief supporting FedEx.

"It is a pro-employee decision," said Debra Friedman, a partner at Cozen O'Connor in Philadelphia. "I do believe that the court does open the door to increased litigation," she said, but the decision does not leave the door wide open.

"First, the court points out that its decision does not automatically apply to Title VII or the ADA. Second, the court points out that not all completed intake questionnaires will constitute a charge. Third, the court held that even if a complainant submits an affidavit in addition to a completed intake questionnaire, the total information provided does not automatically constitute a charge."

Gerald Maatman, a partner at Seyfarth Shaw L.L.P. in Chicago, said that the decision contained a "significant amount of criticism of the EEOC" but would apply to ADEA charges only.

"In essence, the impact will be to allow laymen unrepresented by counsel to more easily file what the EEOC will have to treat as a charge," he said. "If you're an employer, it eliminates some of the procedural defenses that previously existed when employees did not jump through the correct hoops to access the EEOC's machinery."

The Washington-based AARP, which filed a brief supporting the employees, hailed the decision.

"The court rejected out of hand FedEx's position that it can't be a charge until the agency takes some action on it," said Tom Osborne, a senior attorney with AARP Litigation. "Under the statutory language of the ADEA and the regulation, it seems to me a very fair decision."

"It doesn't essentially put the burden on a lay person to have to go through some sort of intricate legal reasoning to say: 'Have I done enough here?' They said it has to be friendly to the average person."

The EEOC also praised the decision, pointing out in statement that "as the Court noted, the EEOC has taken steps to ensure timely notification to respondents of receipt of intake questionnaires or other correspondence that constitute charges. We will continue to review our procedures as the Court has suggested to ensure that they are clear to the public and consistent with our statutes and regulations."

Federal Express Corp. vs. Paul Holowecki et al. U.S. Supreme Court. No. 06-1322. Decided Feb. 27, 2008.