On Tuesday November 6, 2007, the Supreme Court will hear argument in No. 06-1322, Federal Express Corp. v. Holowecki. This case presents the question of what may constitute a "charge" of discrimination that a potential plaintiff must submit to the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) before bringing a private lawsuit.


The ADEA makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." An individual facing age discrimination may bring a civil action against her employer, but she must first file a charge of discrimination with the EEOC within (depending on the jurisdiction) 180 or 300 days of when the alleged discrimination occurs. The employee must wait sixty days after filing the charge at the EEOC to bring suit. After receiving a charge, the EEOC must promptly notify the employer of the charge and seek voluntary resolution of the claims.

Patricia Kennedy was a courier for petitioner Federal Express (Fed Ex). On December 3, 2001, Kennedy filed an EEOC Form 283 Intake Questionnaire and accompanying affidavit alleging that Fed Ex had instituted a number of policies and practices that discriminated based on age. She did not file an EEOC Form 5 Charge of Discrimination at this point. The EEOC did not assign a charge number to Kennedy's submission, it did not inform Fed Ex that it had received Kennedy's Form 283, and it made no attempt at informal conciliation. On April 30, 2002, Kennedy filed a class-action ADEA suit on behalf of herself and others similarly situated. Exactly one month later, she submitted a Form 5 Charge of Discrimination to the EEOC.

The district court granted Fed Ex's motion to dismiss the suit on the ground that the December 2001 submission did not constitute a "charge" under the ADEA. The Second Circuit, however, reversed. It held that the standard for what constitutes a charge is twofold. First, the court held that a charge must comport with the EEOC regulations, which state that a charge is sufficient when the person making the charge names the employer and generally describes the discriminatory acts. Second, the court held that the EEOC filing must manifest the employee's intent to file a charge as viewed through the lens of a reasonable person. The Second Circuit found that Kennedy's December 3 submission clearly had all of the required information and indicated her intention to "activate the . . . machinery" of the EEOC. Her filing therefore met the requirements of the ADEA, and the Second Circuit permitted her suit to go forward.

Petition for Certiorari

Fed Ex filed a petition for certiorari on March 30, 2007, which was granted June 4, 2007.

In its cert. petition, Fed Ex contended that the question presented in this case was extraordinarily important. It argued that permitting intake questionnaires and other similar documents to suffice as charges despite the EEOC's failure to act would lead to increased litigation and undermine the delicate balance between employer and employee that Congress struck in enacting the ADEA. If a document could suffice as a charge without EEOC action, litigation would increase and the conciliation goals of the ADEA would be undermined. Alternatively, the EEOC's workload would increase tremendously as it would be forced to treat many more documents as charges.

Fed Ex further argued that the circuits were deeply divided on the issue of what constitutes a charge. Some circuits had held that an intake form does not constitute a charge, others had held that an intake form could be a charge so long as the employee believed that her filing was sufficient to begin formal proceedings, and still others had held that an intake form could constitute a charge even without evidence of the employee's own belief. Fed Ex contended that this split was demonstrated most clearly by contrasting the Second Circuit's opinion below with an Eleventh Circuit decision dismissing an ADEA case against Fed Ex with almost identical facts.

Respondent Kennedy contended that the Court should deny review because the conflict cited by petitioner was illusory. Kennedy argued that the Eleventh Circuit had applied the same test as the Second Circuit in the similar cases cited by petitioner "“ the result only differed because the courts had different views about the reasonable intent of the employee who filled out the intake questionnaires. Moreover, respondent contended that the EEOC regulations clearly identified the steps an employee needed to follow to file a charge. When an employee follows those regulations, it should not be held against the employee if the EEOC fails to act.

Finally, Respondent argued that Kennedy would be permitted to remain a party to this lawsuit even if the Court found for Fed Ex. Because the Second Circuit below had found that other parties alleging similar discrimination had also met the charging requirements of the ADEA, Kennedy would be permitted to piggy-back on their charges and remain a class member.

Merits Briefing

In its merits brief, Fed Ex (which brought on new appellate counsel) changes its argument significantly from the cert. stage. For the first time, it argues that the ADEA itself defines a charge by setting out a list of requirements that must be satisfied before an employee can sue her employer for age discrimination. Not only must an employee file a writing with the EEOC and then wait sixty days before filing suit, but the employee also may not sue until the EEOC notifies the employer of the employee's allegation and attempts informal conciliation. Fed Ex contends that reading the legislative scheme any other way would undermine the careful employer-employee balance struck by Congress, result in increased litigation generally, and prejudice employers who would potentially face litigation years after the incident from which it arose.

Fed Ex further argues that even if courts could craft a "fairness exception" based on the idea that an employee is not at fault when the EEOC fails to provide notice to the employer and attempt conciliation, such an exception would be inappropriate here because nothing in the record indicates that Kennedy had any reason to believe that her intake questionnaire was a charge. According to petitioner, the Second Circuit's test "“ which construed the tone of the intake questionnaire tone as indicating an intent to file a charge "“ is entirely subjective. Petitioner claims that such a test creates the prospect that employees will purposely file ambiguous documents with the EEOC in the hope that the Commission will not treat them as a charge but courts later might.

Respondents' merits brief relies heavily on the EEOC regulations, which define the minimal requirements of a charge "“ that they name the employer and allege the discriminatory acts. Respondents argue that Kennedy's intake questionnaire clearly comports with the EEOC's requirements. Moreover, they argue, the Commission's failure to treat Kennedy's intake questionnaire as a charge should not affect her rights under the ADEA. To hold otherwise would be inconsistent with the Supreme Court's general recognition that plaintiffs should not be held responsible for things beyond their control. Finally, respondents contend that even if the Court decides to adopt the Second Circuit's test "“ requiring that an employee's EEOC filing manifest the intent to have the Commission commence proceedings "“ Kennedy's intake questionnaire demonstrated such intent.

Lastly, the United States filed a brief as amicus in support of respondents. In the government's view, the case presents a simple issue of Chevron deference. The ADEA does not define "charge." The text of the statute makes clear that only after receiving a charge must the EEOC inform the employer and attempt conciliation. Therefore, contrary to petitioner's view, the notice and conciliation provisions cannot themselves be part of a statutory definition charge. As the ADEA is unclear on what constitutes a charge, the government argues that the EEOC's notice and comment regulations mandating that a charge merely name the employer and describe the discrimination are binding. The United States further contends that EEOC guidance documents adopt the manifest intent test used by the Second Circuit, so that a charge must also demonstrate the intent of the employee to make a formal accusation of unlawful discrimination.

Finally, the United States argues that the EEOC's failure to fulfill its notice and conciliation duties upon receiving Kennedy's charge does not undermine her right to sue. While acknowledging that "“ as Fed Ex contends "“ employers could be prejudiced by failing to receive notice from the EEOC, the government argues that a district court could minimize the harm to an employer through the appropriate use of trial tools generally at its disposal "“ for instance, issuing a stay to allow for attempted conciliation or invoking the doctrine of laches to prohibit stale claims. In spite of the difficulties facing employers, the United States concludes that "when the [EEOC] regrettably drops the ball in handling a timely submitted charge, defendants are not entitled to a windfall in the form of the dismissal of a potentially meritorious age discrimination suit."

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