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Supreme Court: Is intake questionnaire an EEOC "charge"?
November 04, 2007 by Ross Runkel at LawMemo
Circuit courts are split as to whether filing an intake questionnaire qualifies as filing a "charge" with the EEOC. Filing a timely charge is required before taking an ADEA case to court.
Tuesday, November 6, 2007 the US Supreme Court will hear oral arguments on this question in Federal Express v. Holowecki [click here for details and all briefs.]
Plaintiff Patricia Kennedy filed an EEOC Intake Questionnaire plus a four-page verified affidavit detailing her claims of age discrimination.
The EEOC did not assign a case number, did not investigate or attempt to resolve the matter, and did not notify the employer.
The trial court dismissed her later law suit for failure to exhaust EEOC remedies as required by the Age Discrimination in Employment Act (ADEA).
The 2nd Circuit reversed, holding that Kennedy's filing (1) contained the information required by the statute and by the EEOC's interpreting regulations, and (2) demonstrated Kennedy's intent to activate the EEOC's administrative process. The US Supreme Court granted certiorari to review the 2nd Circuit's judgment.
The government has filed an amicus brief and will argue in favor of the respondents (employees).
My view: An easy win for the respondents-plaintiffs-employees.
The best summary of what I think will be the prevailing argument is contained in the amicus brief filed by the government:
- In answering the question presented, the Court should follow the framework set forth in Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). The first inquiry under Chevron is "whether Congress has directly spoken to the precise question at issue." Id. at 842. The answer to that question is no, because the ADEA does not define or otherwise provide concrete guidance as to the meaning of "charge."
- Because Congress has not directly spoken to the question of what is a "charge," resolution of this case turns on whether the agency has adopted "a permissible construction of the statute." Chevron, 467 U.S. at 843. It has.
- The EEOC's administrative interpretation of "charge" is entitled to deference. The agency's interpretation is consistent with the text and object of the ADEA and gives "specificity to a statutory scheme that the [Commission is] charged with enforcing and reflect[s] the considerable experience and expertise that the [EEOC] ha[s] acquired over time with respect to the complexities of" dealing with the wide variety of submissions it receives from members of the public.
- Respondent's December 3, 2001, submission constitutes "a charge alleging unlawful discrimination" under the ADEA. There is no dispute that respondent's submission complies with all of the regulatory requirements as to a charge's form and content. In addition, respondent's intake questionnaire and accompanying affidavit objectively manifest an intent to make a formal accusation of unlawful age discrimination against petitioner. In particular, on the intake questionnaire respondent specifically gives consent for the EEOC to disclose her identity to petitioner, and that document was accompanied by a five-page notarized affidavit that details the alleged discrimination and asks the EEOC to "force [petitioner] to end [such] discrimination." That submission clearly and objectively manifests an intent to make a formal accusation of unlawful age discrimination.
- The fact that the EEOC failed to fulfill its notice and conciliation duties upon receiving respondent's charge does not transform that charge into something else, and it does not bar respondent's suit.
The parties' briefs have interesting arguments about what is "fair" and what the employee's "intent" was. Sorry folks; I don't think it matters. This case is about the statutory definition of "charge" and whether the EEOC's interpretation of "charge" is reasonable and entitled to deference.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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