Wednesday, February 27, 2008
Update: Paul Mollica has this additional analysis. I agree with him when he writes:
It seems to me that the Court reached a just solution (and, in full disclosure, I authored an amicus brief for a coalition of public interest groups in support of Holowecki). It recognizes that most charges are filed by uncounselled lay folk. "The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the Act that a charge can be a form, easy to complete, or an informal document, easy to draft." (And had the opinion come out the reverse way, imagine the headline on that story: "Supreme Court Says Age Bias Claim Loses Because Employee Files Wrong Form.") It is also a smashing vindication of deference to the EEOC's administrative authority, very useful for plaintiffs in future cases.
Have to admit that I was a little nervous when I first read that the opinion in Federal Express v. Holowecki, the case concerning the meaning of a "charge" under Title VII (previous coverage here), that came down from the Supreme Court today was written by Justice Kennedy. My mind was relieved, however, when I saw that he was joined by Ginsburg and the other progressive justices and there was a dissent by Scalia and Thomas. 7-2 for plaintiff, actually about what I predicted (though I though there be something about equitable tolling).
Here's the highlights to the syllabus of the case:
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. sec. 626(d), but does not define the term "charge." After petitioner delivery service (FedEx) initiated programs tying its couriers' compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 "Intake Questionnaire" and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent's action, contending she had not filed the "charge" required by sec. 626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx's motion. The Second Circuit reversed.
1. In addition to the information required by the 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. Pp. 3-13.
(a) There is little dispute that the EEOC's regulations--so far as they go--are reasonable constructions of the statutory term "charge" and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR sec. 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 acts in violation of the Act." . . . .
(b) Just as this Court defers to reasonable statutory interpretations, 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,'" Auer v. Robbins, 519 U. S. 452 .
(c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is 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. Pp. 6-8.
(d) The EEOC acted within its authority in formulating its request-to-act requirement . . . . Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a "measure of respect" under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461 , whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218 . Here, the relevant interpretive statement has been binding on EEOC staff for at least five years . . . .
(e) FedEx's view that because the EEOC must act "[u]pon receiving ... a charge," 29 U. S. C. sec.626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106 . . . .
2. The agency's determination that respondent's December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces. Pp. 13-17 . . . .
The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge. Pp. 13-15.
(b) Because the EEOC 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 court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance. Pp. 16-17.
After the Mendlesohn punt yesterday, it is nice to see the Court roll up its sleeves and get analytically dirty with the procedural aspects of employment discrimination law (technically, this is an ADEA case, but it will apply to other claims under Title VII, ADA, etc. too).
The opinion has a little bit for everyone and may be the first time in a while that I can remember the Court deferring to the EEOC under any standard, Chevron, Skidmore, whatever. At the same time, the Court takes a shot across the EEOC's bow (sorry for all the lame metaphors) and tells them to clean ship (couldn't resist).
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.