Last week, lots of virtual ink was spilled on the U.S. Supreme Court’s arguments in Federal Express v. Holowecki which has been labeled as a noteworthy age discrimination claim, following in the shoes of the Supreme Court’s ruling in Ledbetter in the spring. Several blogs have good summaries of what happened, including: LawMemo, Ohio Employer’s Law Blog, and the New Jersey Employment Law Blog.
What’s the issue before the Supreme Court? The issue is what constitutes a "charge" of discrimination submitted to the Equal Employment Opportunity Commission under the Age Discrimination in Employment Act before plaintiff can institute a private lawsuit. From the oral argument and the reports on the case, it appears likely that the court will find that the EEO’s use of an intake questionnaire may be a "charge".
All very well and good, but for employers and HR professionals, there is a remaining question that has not yet been answered so far: "Should we worry about this employment law case?" The answer is: Not that much.
For Title VII and ADA cases, this case will have no real impact. In those types of cases, an employee who wants to sue in federal court must first get a right to sue letter from the EEOC. For those cases, an employee’s charge must be processed in a meaningful fashion.
ADEA (age discrimination) plaintiffs do not face a similar hurdle; rather the charge must simply be filed and the employee must simply wait 60 days before filing a federal claim; no right to sue letter is needed. Thus, the concern expressed by FedEx and by the U.S. Chamber of Commerce in their amicus brief, that employers may not receive the same type notice of ADEA claims, is certainly possible. In Holowecki, FedEx’s problems were compounded by the EEOC’s admitted failure to follow statutorily mandated procedures to notify the the employer of the complaint.
As a practical matter, nearly all of the ADEA claims filed, particularly in Connecticut, are handled in the normal course of business — that is, that the employee files a discrimination charge, and the employer is notified of that charge. Even if the EEOC only fills out an intake questionnaire, the EEOC is mandated to followup on it typically.
Connecticut, which has a work-sharing agreement with the EEOC to process EEOC charges that are cross-filed in the state, goes one step further. The CHRO will send out notices to employers upon receipt and initial processing of an age discrimination suit. Thus, as a practical matter, it is highly unlikely that an employer in Connecticut will not get notice of the charge. Because virtually all discrimination charges are filed in the normal course of business, the situation that arises in Holowecki is simply not likely to repeat itself with any frequency, particularly within Connecticut.
For that reason, a Supreme Court’s decision in Holowecki — while perhaps interesting in a "technical" way — is not likely to have any significant impact for employers in Connecticut. Unless the Supreme Court deviates from its typical path and sets forth new criteria for handling such claims, the case ultimately may be newsworthy only to employment law bloggers such as myself.