Monday, June 4, 2007
Update: More on Holowecki from SCOTUSBlog
Thanks to SCOTUSblog (where else?) for bringing to my attention that the Supreme Court has granted cert. today in the Title VII case of Federal Express Corp. v. Holowecki (here is the petition for cert.).
The question presented is:
Whether the "intake questionnaire" submitted to the EEOC may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.
This issue remains after the recent case of Edelman v. Lynchburg College, 535 U.S. 928 (2002), where the plaintiff faxed an unverified letter alleging sex discrimination to an EEOC field office. Although the fax was received 161 days after the alleged date of discrimination, the verified charge was not filed until 313 days later in a jurisdiction with a 300-day statute of limitation. There, the Court found that Title VII was ambiguous regarding whether a "charge" had to be "under oath or affirmation" and deferred to the EEOC regulation as reasonable which allowed the charge to be considered timely under the circumstances.
Edelman left open and Howolecki will answer the question of what constitutes a "charge" for purposes of employment discrimination law. The circuit courts are split on this issue. Compare Pijnenburg v. West Georgia Health System, 255 F.3d 1304 (11th Cir. 2001) (in-take questionnaire not a charge) with Holowecki, 440 F.3d 558 (2d Cir. 2006) (coming to opposite conclusion).
I will have more to write on this case later, but it will surely pit the formalists on the Court against the pragmatics and ask whether an intake questionnaire by and large serves the same notice and conciliatory purposes that the formal EEOC charge is supposed to serve. The case is somewhat complicated because it doesn't seem that the EEOC or the plaintiff ever believed the questionnaire constituted a charge.
At this early stage, and with the change of Supreme Court personnel since 2002, I'm thinking this decision will be a formalist one, requiring a formal charge of discrimination.