Federal Express v. Holowecki: EEOC Charge Defined
In Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 128 S. Ct. 1147 (2008), the Supreme Court held that for an employee’s filing with the Equal Employment Opportunity Commission to be deemed a “charge” under the Age Discrimination in Employment Act, 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.
The Age Discrimination in Employment Act of 1967 (ADEA) requires that “[n]o civil action … be commenced … until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission” (EEOC), 29 U.S.C. § 626(d), but does not define the term “charge.”
A group of FedEx couriers filed suit under the ADEA. They maintained that certain FedEx compensation and productivity programs were veiled attempts to force older workers out of the company before they would be entitled to receive retirement benefits. FedEx allegedly used the initiatives as a pretext for harassing and discriminating against older couriers in favor of younger ones.
Holowecki involved a question about the timeliness of the suit filed by one of the plaintiffs, Patricia Kennedy. FedEx moved to dismiss Kennedy’s action, contending she had not filed her charge with the EEOC at least 60 days before filing suit, as required by 29 U.S.C. § 626(d).
Kennedy argued that she filed a valid charge on December 11, 2001, by submitting EEOC Form 283, which EEOC labels an “Intake Questionnaire.” Kennedy attached to the questionnaire a signed affidavit describing the alleged discriminatory employment practices in greater detail. The trial court determined these documents were not a charge and granted the motion to dismiss. The Second Circuit reversed, finding that the completed questionnaire and affidavit were a charge.
The Court’s Decision
The Court affirmed. It held that the completed questionnaire and affidavit were a “charge” for purposes of the ADEA’s charge-filing requirements
First, the Court held that in addition to the information required by the EEOC’s implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a “charge” under the ADEA 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.
The Court observed that the EEOC’s regulations were reasonable constructions of the statutory term “charge” and were therefore entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–845 (1984). However, the Court noted that while the regulations gave some content to the term “charge,” they fell short of a comprehensive definition.
Thus, the Court determined the issue was the guidance the regulations gave. 29 CFR § 1626.3 says: “charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in actions in violation of the Act.” 29 CFR § 1626.8(a) identifies information a “charge should contain,” including: the employee’s and employer’s names, addresses, and phone numbers; an allegation that the employee was the victim of age discrimination; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. Section 1626.8(b), however, seemed to qualify these requirements by stating that a charge is “sufficient” if it meets the requirements of § 1626.6 — i.e., if it is “in writing and … name[s] the prospective respondent and … generally allege[s] the discriminatory act(s).”
Thus, the meaning of “charge” remained unclear, even with the regulations. 128 S. Ct. 1153–55.
The Court then observed that under Auer v. Robbins, 519 U.S. 452, 461 (1997), an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is “ ‘ plainly erroneous or inconsistent with the regulation[.]’” Id. The Court decided to give that deference to the EEOC’s position that its regulations identify certain requirements for a charge but do not provide an exhaustive definition. It therefore followed that a document meeting § 1626.6’s requirements may not be a charge in every instance. The language in §§ 1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. Because the relevant provisions were grouped under the title, “Procedures — Age Discrimination in Employment Act,” the Court found a permissible reading was that the regulations identified the procedures for filing a charge but did not state the full contents of a charge. 128 S. Ct. 1154–1155.
The Court pointed out that this reading still did not resolve this case because the regulations did not state what additional elements were required in a charge. The EEOC maintained, consistent with its position in internal directives, that the proper test was whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights. 128 S. Ct. 1155–1156.
The Court held that the EEOC acted within its authority in formulating this “request-to-act” requirement. It pointed out that the agency’s policy statements, embodied in its compliance manual and internal directives, interpreted not only its regulations but also the statute itself. Even if those interpretive statements were not entitled to full Chevron deference, the Court found they nevertheless were entitled to a “measure of respect” under the less deferential standard of Skidmore v. Swift & Co., 323 U.S. 134 (1944). In applying Skidmore deference, a court considers whether the agency has consistently applied its position, and that was the case with respect to the EEOC’s interpretation of “charge,” as the relevant interpretive statement had been binding on EEOC staff for at least five years. 128 S. Ct. 1156–1159.
Second, the Court held that EEOC’s determination that an “Intake Questionnaire” and detailed affidavit was a “charge” was a reasonable exercise of its authority to apply its own regulations and procedures in the course of routine administration of ADEA.
The Court reasoned that Kennedy’s Form 283 contained all the information outlined in 29 CFR § 1626.8, and, although the form did not itself request agency action, the accompanying affidavit asked the EEOC to “force [FedEx] to end [its] age discrimination plan.” The Court rejected FedEx’s argument that, in context, the latter statement is ambiguous because the affidavit also stated: “I have been … assur[ed] by [the EEOC] that this Affidavit will be considered confidential … and will not be disclosed … unless it becomes necessary … to produce the affidavit in a formal proceeding.” The Court found this argument read too much into the nondisclosure assurances. Kennedy did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential, while also consenting to disclosure of the affidavit in a formal proceeding. Kennedy also checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx. The Court found irrelevant the fact that Kennedy filed a formal charge with the EEOC after she filed her District Court complaint because postfiling conduct does not nullify an earlier, proper charge.128 S. Ct. 1159–1160.
Finally, the Court observed that the EEOC’s failure to initially treat Kennedy’s filing as a charge created some inefficiencies. For example, it meant both sides lost the benefits of the ADEA’s informal dispute resolution process. Still, the filing was a valid charge. The Court concluded that the ultimate responsibility for establishing a clearer, more consistent process for EEOC forms and proceeds lies with the EEOC, to reduce the risk of future misunderstandings by the employees who seek its assistance. 128 S. Ct. 1160–1161.
In sum, Holowecki held that for an employee’s filing with the EEOC to be deemed a “charge” under the Age Discrimination in Employment Act, 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.
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