Attorneys can go months — if not years — without Supreme Court guidance on employment law issues. But today, the Supreme Court issued its second employment-law related decision in as many days.
However, for the second day in a row, the Supreme Court issued a decision that, at the end of the day, isn’t really about employment law at all, but something else. In today’s opinion, the Supreme Court really examined what type of deference should be afforded to the EEOC in construing the federal statutes about what is a "charge" of discrimination under ADEA (the federal age discrimination statute).
In Federal Express v. Holwecki, the Supreme Court — by a 7-2 margin — decided 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. Here, the Court found that the EEOC had some regulations and internal directives on the subject and is therefore entitled to some "measure of respect" as to what constitutes a charge. It also provided that the EEOC acted reasonably in interpreting an intake questionnaire as a "charge".
Workplace Prof has his early thoughts too and a general discussion of the case.
The case’s outcome is good on two levels for employment discrimination plaintiffs. First, it allows these Fed Ex plaintiffs to get to the substance of their complaint and second, it will force the EEOC to come out with clear regulations on what counts as a "charge" in the future so the parties are able to structure their future conduct accordingly and not be prejudiced by a shifting rules.
And finally, I have to say that this well-reasoned majority opinion restores my faith somewhat that this court is not completely in the bag for employer interests. Not completely.
A few months ago, in a post entitled "‘Supreme Court to Decide Age Discrimination!’" Is This Important To Employers in Connecticut", I indicated that for employers in Connecticut, this case would not amount to much. And since its not often an attorney gets to say, "I told you so", I’ll just let my prior post speak for itself.
[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.
And in fact, the Supreme Court did not deviate from its expected path. The court found that although the employer had good reason to complain about the way the EEOC treated the matter, it was not entitled to a decision in its favor. Ultimately, the Supreme Court warned, the EEOC and other agencies are responsible for cleaning up their regulations and practices:
Here, because the agency failed to treat respondent’s filing as a charge in the first instance, both sides lost the benefits of the ADEA’s informal dispute resolution process.
The employer’s interests, in particular, were given short shrift, for it was not notified of respondent’s complaint until she filed suit. The court that hears the merits of this litigation can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. True, that remedy would be imperfect. Once the adversary process has begun a dispute may be in a more rigid cast than if conciliation had been attempted at the outset.
This result is unfortunate, but, at least in this case, unavoidable. While courts will use their powers to fashion the best relief possible in situations like this one, the ultimate responsibility for establishing a clearer, more consistent process lies with the agency.
Justice Thomas – fresh off of being in the majority in yesterday’s decision — writes a dissent that basically mocks the majority for its failure to outline any real standards in the case:
Today’s decision does nothing— absolutely nothing—to solve the problem that under the EEOC’s current processes no one can tell, ex ante, whether a particular filing is or is not a charge. Given the Court’s utterly vague criteria, whatever the agency later decides to regard as a charge is a charge—and the statutorily required notice to the employer and conciliation process will be evaded in the future as it has been in this case. The Court’s failure to apply a clear and sensible rule renders its decision of little use in future cases to complainants, employers, or the agency.