U.S. Supreme Court Takes a Liberal View of What Constitutes a “Charge” of Discrimination Under the ADEA
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In Federal Express Corp. v. Holowecki, 552 S. Ct. ___ (U.S. Feb. 27, 2008), the U.S. Supreme Court considered the following issues:  (1) what constitutes a “charge” of discrimination under the ADEA, and (2) did the employee in this case file a “charge”?   The plaintiff in Holowecki had completed the EEOC’s form “Intake Questionnaire” and attached an affidavit describing the alleged discrimination in greater detail, but shehad not submitted the Commission’s Form 5, called a “Charge of Discrimination,” prior to filing suit.   As discussed briefly below, the Court rejected a narrow interpretation of the term “charge” in favor of a “permissive” standard which, according to the Court, may allow “a wide range of documents” to be classified as “charges.”
 
Specifically, the Court arrived at the following definition of an ADEA “charge”:  “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.”  (emphasis added)   
 
Applying this standard to the facts of the case, the Court held that Holowecki filed a “charge” because even though her Intake Questionnaire did not request that the EEOC take action, her accompanying affidavit did.  That affidavit asked the Commission 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 by the company.
 
The Court concluded its opinion by urging the EEOC to issue clearer regulations defining “charge.” 
 
The Bottom Line for Employers
         
Because the Court drew no bright lines, employers evaluating defenses of untimeliness or failure to exhaust administrative remedies based on defective charges in age discrimination cases will have to apply Holowecki to the facts at hand, at least until the EEOC clarifies its regulations.   Employers must look to whether the employee requested that the EEOC “take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee.”  This definition likely excludes some Intake Questionnaires and other documents which allege violations of the ADEA, but do not request action by the Commission. 
 
Further, employers should note that the Court expressly limited its holding to ADEA cases, although it allowed the possibility that its analysis could apply in some respects to other types of discrimination claims.  The Court cautioned that “the EEOC enforcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII . . ., and that counsel “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.”
 

*  Muskat, Martinez & Mahony, LLP represents employers in labor and employment lawmatters.  For more information, visit our website at www.m3law.com, or contact any of our lawyers:
 
Mike Muskat, (713) 987-7851, mmuskat@m3law.com
Samantha Martinez, (713) 987-7852, smartinez@m3law.com
Michelle Mahony, (713) 987-7849, mmahony@m3law.com
Stephanie Schmutz Parente, (713) 987-7853, sparente@m3law.com
Amy Ferber, (713) 987-7850, aferber@m3law.com