By the time this article appears on your desk, the men's and women's NCAA basketball tournaments will be over and new national champions will be celebrated. Although the great team and individual performances, buzzer-beating shots and near misses will be discussed in boardrooms and bar rooms for years to come, basketball fans also will debate for just as long whether allegedly poor calls by referees stole certain victory from one team or another. Presumably at the center of some of these debates will be whether a charge was called correctly and, if it was not, what effect that call had on a close game's outcome.
Basketballs fans everywhere are experts on when a charge occurs (particularly when the call is made in favor of his or her team). It a classic example of "you know it when you see it" or, more appropriately, "where you stand depends on where you sit." Until recently, unfortunately, the Equal Employment Opportunity Commission (EEOC), employment discrimination complainants and employers were not sure what constituted a charge (although each of them had a good idea of what was not a charge) under EEOC regulations and federal law. Then came the U.S. Supreme Court's decision in Federal Express Corp. v. Holowecki, 128 S. Ct. 1147 (Feb. 27, 2008), which held that a charge may take several forms so long as it contains certain key pieces of information. This holding was a game-blowing call for employers.
The Holowecki case was brought by 14 plaintiffs who contended that certain programs implemented by Federal Express (FedEx) were transparent attempts to force older workers out of FedEx in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. While the facts in Holowecki are not salacious and the summary judgment briefs clearly are not the making of a tawdry best seller, Holowecki actually considered and decided a technical legal issue: what constitutes a charge under the ADEA.
The ADEA provides that an individual who believes that he or she suffered unlawful age discrimination may bring a civil action against the offending employer but first must file a Charge of Discrimination with the EEOC and wait 60 days before initiating a lawsuit. This is what is called "exhaustion of administrative remedies." The EEOC, upon receipt of a Charge of Discrimination, must promptly notify the employer of the charge and seek voluntary resolution of the claim. This system generally works until, as in Holowecki , an employer challenges the integrity of the administrative process.
Of the 14 plaintiffs in Holowecki , none filed a Charge of Discrimination with an administrative agency before bringing suit as required by the ADEA. One, plaintiff, however, completed an EEOC Intake Questionnaire and affidavit that described FedEx's allegedly discriminatory conduct, on which the remaining plaintiffs relied pursuant to the piggybacking rule. By way of background, the EEOC Intake Questionnaire requests information from the complainant that is later used to assess whether there exists a sufficient basis for a Charge of Discrimination. If a sufficient basis exists, the information set forth in the questionnaire is used by the EEOC to complete the Charge of Discrimination, which the EEOC ultimately forwards to the employer.
The trial court dismissed the plaintiffs' complaint, reasoning that the completion of an EEOC Intake Questionnaire and submission of an affidavit did not constitute a "charge" under the ADEA. The U.S. Appellate Court for the Second Circuit later reversed the trial court's decision. The Supreme Court granted FedEx's Petition for Certiorari.
The Supreme Court considered what comprises a "charge" under the ADEA and whether the EEOC Intake Questionnaire and supporting affidavit met the ADEA's charge requirement. The Court noted that "Charge of Discrimination" has no comprehensive statutory definition and that even when considering the relevant regulations as a whole, it remains unclear what a charge is, including whether a completed EEOC Intake Questionnaire is simply a charge of a different color. This uncertainty is borne out by the Second Circuit's view that an EEOC Intake Questionnaire can comprise a charge if it expresses the complaining party's intent to activate the EEOC's enforcement procedures, while the Ninth Circuit's view is that a completed Intake Questionnaire is per se a charge.
Predictably, the definition of "charge," as espoused by the parties and the EEOC in an amicus brief, are just as varied. For example, the employees argued that to the extent the completed EEOC Intake Questionnaire and accompanying affidavit identified the employer and alleged discriminatory acts, the document met the minimal regulatory requirements for a charge. On the other hand, the EEOC argued that not all documents that meet the minimal regulatory requirements are charges. Instead, the EEOC argued that a charge must contain, at a minimum, the name of the employer, an allegation of discrimination and a statement that may be construed as a request for the agency to take action based on the allegation of discrimination. FedEx took a third position, arguing that any information provided by a complaining party does not become a "charge" until the EEOC fulfills its mandatory duty to notify the employer of the charge and initiates the conciliation process.
The Court, in a 5-2 decision, adopted the EEOC's "request for remedial action" test, reasoning that an EEOC filing meets the definition of a "charge" if it contains an allegation of discrimination, names the employer and can 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." Holding in the employees' favor, the Holowecki Court determined that the Intake Questionnaire and affidavit comprised a Charge of Discrimination within the meaning of the ADEA. Thus, the lawsuit against FedEx can continue in light of the Court's conclusion that the employees had requested that the EEOC take remedial action on their behalf.
Notably, the Court expressed its displeasure with the EEOC, taking it to task for its "undoubted deficiencies in [its] administration of the statute and its regulatory scheme." In fact, at oral argument, Justice Scalia stated that the "nonsense" of this case can be traced back to the EEOC and it is the EEOC's fault that one of the Holowecki parties must bear the burden of the EEOC's poor processes. Nonetheless, the Court noted that the EEOC's position was entitled to a "measure of respect," if not full deference. The Court also remarked that the EEOC should determine what revisions in its forms and processes are necessary or appropriate to improve the charge-filing process. The Court noted that an improved process is necessary because any documents filed with the EEOC by a complaining party ought to be construed, to the extent consistent with the rule of interpretation, to protect the employee's rights and statutory remedies. This is significant particularly in light of the number of persons who appear at the EEOC unrepresented by counsel and, presumably, unschooled in the intricacies of stating a case.
Justice Thomas (who was joined by Justice Scalia) filed a dissenting opinion, stating that the majority opinion "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." Justice Thomas further admonished the majority, stating that "the statutorily required notice to the employer and conciliation process will be evaded in the future as it has been in this case." Finally, Justice Thomas warned that the majority's "failure to apply a clear and sensible rule renders its decision of little use in future cases to complainants, employers, or the agency."
In light of the Court's sweeping definition of charge, Holowecki has troubling implications. First, a charge seemingly may take any form so long as it contains the employer's name, allegations of discrimination and a request for remedial action. How the charge-filing process will be affected is unknown but it is likely that identifying when the administrative process began for statute of limitations purposes will be only murkier. Holowecki also imperils an employer's ability to argue that a plaintiff failed to exhaust administrative remedies because so long as there is a writing (such as an EEOC Intake Questionnaire) that contains the above three elements, an exhaustion defense will be less persuasive. Moreover, Holowecki does not resolve whether the "request for remedial action" test is applicable other than in ADEA cases.
So, just as in NCAA basketball, where whatever a referee regards as a charge is a charge, Holowecki permits the EEOC to make the same call, i.e., whether any writing is a charge for purposes of the ADEA. Unfortunately, in the absence of an unambiguous, more sensible rule, litigation will continue over this hypertechnical issue, to the inevitable detriment of both complaining parties and employers.
Thomas H. McDonough is an Associate in WolfBlock's Employment Services Practice Group. He focuses his practice on the representation of management in all aspects of labor and employment law. He has experience in employment litigation and counseling in matters arising under both federal and state statutes and common law.