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Today the Court agreed to decide a question is left open last week in Ledbetter v. Goodyear, No. 05-1074: whether filing an “intake questionnaire” with the Equal Employment Opportunity Commission (EEOC) satisfies a statutory requirement that employees file a charge of discrimination with the EEOC before proceeding to court. The case is Federal Express Corp. v. Holowecki, No. 06-1322.

The Age Discrimination in Employment Act (ADEA), along with other federal employment discrimination statutes, requires that workers who believe they have been subject to unlawful employment discrimination file a “charge” of discrimination with the EEOC as a precondition for filing suit in federal court. The statute then requires the EEOC to notify the employer of the charge, investigate it, and seek to mediate the conflict. The statute also requires an employee to wait 60 days after filing the charge before suing in federal court. (Unlike Title VII, the ADEA does not require the employee to wait to receive a “right to sue” letter from the EEOC).

The statute does not, however, specify what constitutes a “charge.” The EEOC has developed regulations and procedures for accepting and processing charges. Among other things, the EEOC has developed a form “Intake Questionnaire” to give to workers who contact the agency regarding claims of employment discrimination (Form 283). The agency also has a “Charge” form (Form 5). The agency’s regulation does not require the use of either form to file a charge of discrimination, but instead states that “A charge shall be in writing and shall name the prospective respondent and shall generally allege the discriminatory act(s).” The question in this case is whether filling out the questionnaire, and sending it to the EEOC, constitutes filing the “charge” of discrimination required by the statute.

In this case, a group of employees of Federal Express came to believe that they had been subject to age discrimination in violation of the ADEA. One of the workers sent the EEOC a completed questionnaire form. The EEOC, however, apparently never notified FedEx that it was the subject of a charge of discrimination or took any other action. More than sixty days later, the workers filed suit. FedEx moved to dismiss on the ground that the questionnaire did not constitute a “charge” and, therefore, the workers had violated the requirement that they file a charge of discrimination at least 60 days prior to filing suit.

The district court agreed, but the Second Circuit reversed. The court recognized that the EEOC’s regulations require only a minimal amount of information in a charging document, and that the information in the questionnaire satisfied the regulatory requirement. However, it agreed with other circuits that to meet the requirement of the statute, the charge must also “demonstrate[] that an individual seeks to activate the administrative investigatory and conciliatory process” and, therefore, “must be of a kind that would convince a reasonable person that the grievant has manifested an intent to activate the Act’s machinery.” The court rejected FedEx’s argument that the EEOC must also treat the questionnaire as a charge – i.e., fulfill its statutory duties to provide notice and commence an investigation and conciliation process. The court then concluded that the questionnaire submitted by one of the workers satisfied that standard because it alleged a violation of the ADEA, included a consent to disclose her identity to her employer and included an affidavit that requested that the EEOC “force Federal Express to end their age discrimination plan.”

Federal Express subsequently filed this cert petition (the brief in opposition is here; the Equal Employment Advisory Council and Chamber of Commerce filed this amicus brief supporting petitioner).

Although this case arises in the context of an age discrimination claim, it will likely impact the process for resolving claims of employment discrimination under Title VII (for race, color, national origin, sex and religious discrimination) and the Americans with Disabilities Act as well, as both statutes also require the filing of charges of discrimination with the EEOC.

The case will be briefed over the summer and argued in the fall.