New England Biz Law Update
During a recent oral argument over whether an “intake questionnaire” submitted to the Equal Employment Opportunity Commission constitutes a “charge” of discrimination, justices of the U.S. Supreme Court blasted the agency for inconsistent practices that seem to leave both employers and employees guessing about whether a charge can go forward.
The justices seemed wary of penalizing the employee in the case after hearing that in practice, intake questionnaires are sometimes treated like charges by EEOC agents, while other times – such as in the case before the court – they are not.
This determination is based on the agency’s view of the “manifest intent” of the employee submitting the form.
Hearing this, the court – particularly Justice Antonin Scalia – proceeded to take the EEOC to task.
When Toby Heytens, the assistant to the Solicitor General who was given 10 minutes to argue the EEOC’s interests in the case at the end of the hour, approached the podium, Scalia admonished him before he had a chance to utter a single word.
“Mr. Heytens, let me tell you [that my] main concern in this case, however the decision comes out, is to do something that will require the EEOC to get its act in order, because this is nonsense,” Scalia said. “This whole situation can be traceable back to the agency. And whoever ends up bearing the burden of it, it’s the agency’s fault. This scheme has to be revised.”
FedEx employee
The case (Federal Express Corp. v. Holowecki, No. 06-1322) involves Patricia Kennedy, a FedEx employee who filed an intake questionnaire with the EEOC claiming her employer violated the Age Discrimination in Employment Act.
Federal law requires an employee to file a “charge” of discrimination with the EEOC, a move that triggers the agency’s duty to notify the employer and gives the employee the ability to file a discrimination suit after a period of 60 days.
Believing the form was a “charge,” the employee subsequently joined a class of other employees who filed an ADEA suit against the company. After the case was filed, the employee realized the wrong form had been submitted and filed a formal charge with the EEOC.
But her complaint was dismissed by a U.S. District Court, citing her failure to file the charge before the lawsuit was brought. The 2nd Circuit subsequently reversed, holding that the questionnaire constituted a charge.
Notice of claim
Connie L. Lensing, a Memphis-based attorney arguing on behalf of FedEx, said the intake questionnaire was not a charge because the EEOC did not give FedEx notice. Having notice when a charge is filed is crucial for employers to begin pre-litigation conciliation efforts, she asserted.
“There’s a very big difference in conciliation after notification and before a lawsuit has been filed,” Lensing said.
Before litigation begins, she argued, “The emphasis is on let’s get this conciliated, if possible.”
“I think you’re right about that,” said Chief Justice John G. Roberts., Jr.
But Roberts expressed concern about the remedy.
“The question is whether the remedy for that [is] to throw [out] the suit. … It’s not [the plaintiff’s] fault that the EEOC didn’t notify you. Why should she suffer the categorical sanction of dismissal simply because it’s a little unfairness to you?”
Scalia seemed particularly unmoved by Lensing’s argument that a charge of discrimination was valid only after an employer has been given notice.
“That doesn’t make sense,” Scalia said. “I mean, it’s just like saying [as] a rule of civil procedure that … after a complaint has been filed … if no answer is filed, no complaint has been filed.”
“But notice is required for the suit,” Lensing replied. “So, while [I] understand your reluctance to accept that definition …”
“Only because I’m sane,” Scalia interjected, prompting laughter from onlookers.
Agency problem
David L. Rose, the Washington D.C.-based attorney for the plaintiff, argued that the questionnaire was a proper charge because it had all the elements requested in a charge form.
“The original document is a charge because it identified the [plaintiff], identified the kind of discrimination, and the person signed it,” Rose said. “That’s all that’s needed under the [EEOC] regulation. That regulation is lawful.”
Scalia seemed unwilling to have that determination made on a case-by-case basis by EEOC agents.
“I do believe that the thing either is a charge or isn’t a charge before the EEOC decides whether it’s going to give notice or not,” he said. “It either is or isn’t. It seems to me you know, or ought to know, that this is not a charge.”
After Rose explained that the plaintiff didn’t have a lawyer at the time she filed the form, but had spoken to other FedEx employees who had brought suit after filing the same questionnaire, Scalia said: “I really think the problem here is the EEOC, rather than anybody else.”
When Heytens, assistant to the Solicitor General, argued that the agency makes a determination based on an “objective test” meant to determine the intent of the employee, Scalia stopped him.
“Why do the courts have to struggle with this when the agency could put in bold letters at the top: This is a charge or this is not a charge?” Scalia asked. “Why do federal judges have to inquire into ‘manifest intent’ from now until doomsday?”
In fact, throughout the hour of argument Scalia exhibited his distaste for the “manifest intent” standard by purposefully referring to it as “manifest destiny” and “manifest whatever-it-is.”
Justice Stephen Breyer also seemed frustrated by the absence of a clear agency rule for what constitutes a charge.
“I want to know, where do I read what the definition of a ‘charge’ is in the EEOC rules?” he asked rhetorically. “I just want to know where to read it, because I don’t think you’d refer to a rule of an agency, though normally we do. But you don’t refer to a rule that doesn’t exist; you don’t refer to a rule that nowhere can be found; you don’t refer to a rule that is internally inconsistent.”
