Outten & Golden: Empowering Employees in the Workplace

Another Win for Workers from the Supreme Court

March 10th, 2008 | Paula Brantner

In my last blog post, I talked about a win for workers before the U.S. Supreme Court that might not have seemed like one at first blush. But the very next day, workers enjoyed a clear victory in a 7-2 vote by the Court, in the case of Federal Express Corp. v. Holowecki. Many commentators have noted that the case seems to represent a departure from other cases from the Roberts Court in its worker-friendly tone, and more relaxed approach to proving discrimination. As mentioned before, workers often have to take their victories however they can get them, but this decision was certainly a welcome switch.

Federal Express Corp. v. Holowecki involved the issue of what, exactly, a worker claiming discrimination must file in order for the filing to be valid. Prior to bringing a federal discrimination lawsuit, a worker is required to file a claim with the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit in court. This process is called “exhaustion,” and is designed to ensure that the employer has notice of the claim, and that the EEOC, which specializes in employment discrimination issues, has an opportunity to resolve the claim before a lawsuit is filed.

Typically, when a complainant (the worker filing the discrimination claim) goes to the EEOC, a standard process is followed. The worker first fills out an intake questionnaire (known as Form 283), which details the actions of the employer that the employee believes to be discriminatory. From that document, EEOC personnel generally prepare a document called a “charge,” which serves as the formal document that initiates the discrimination complaint. Once the charge is finalized, it is sent to the employer to give notice of the complaint, and the EEOC will initiate conciliation proceedings to try to resolve the case informally. If those fail, the EEOC will investigate the case, and either determine that there is “probable case” to think that discriminatory actions have occurred, or it will issue what is known as a “right-to-sue” letter, which provides the requisite permission to file a lawsuit in court. (For more information about this process, please see the Workplace Fairness web page on filing claims with government agencies.)

Occasionally, this process breaks down, and the completed intake questionnaire doesn’t become an official charge from the EEOC’s perspective. Perhaps an EEOC employee drops the ball, or there’s miscommunication between the agency and the employee, but for whatever reason, the charge isn’t finalized. The confused employee may then file a lawsuit, believing that what he or she filed was adequate. Or there may be no choice but to forge ahead, if the employee has missed the deadline to file a claim, which means that there’s no time to correct the problem at the EEOC level.

What happened in the Holowecki case was that Patricia Kennedy, a courier for FedEx, filed an intake questionnaire alleging that FedEx had adopted some policies and practices concerning retirement health benefits that discriminated against older workers. The EEOC never issued a charge in her case, did not notify her employer, and made no attempt to conciliate her case. Ms. Kennedy joined 13 other FedEx employees in filing a lawsuit under the Age Discrimination in Employment Act, and only filed a formal charge once the lawsuit was filed.

Prior to the Holowecki decision, courts had been split about what constitutes an actual charge. Some courts required that a formal charge be filed, reasoning that only a formal charge could meet the legal requirements for exhaustion. Others said the intake questionnaire could be enough — if the employee believed it was a charge — while yet others said that the employee’s belief didn’t matter if the intake questionnaire had the basic information necessary for a charge. (See ScotusWiki Analysis.) The ultimate question, from a worker’s perspective, was whether a worker was out of luck when the EEOC messed up, since most of the time, employees going through the EEOC process don’t have attorneys and don’t know what process the EEOC is supposed to follow.

The Supreme Court’s decision recognized this reality, taking into account that employees without attorneys filing claims with the EEOC should, in essence, be given the benefit of the doubt, if there’s any question about whether a formal charge was filed. In the 7-2 decision written by Justice Kennedy, the Court made clear that “[t]he system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes.” The Court said it was “consistent with the purposes” of the Age Discrimination in Employment Act to allow the initial complaint to be submitted on a form that was “easy to complete,” or even as “an informal document, easy to draft.”

Anything less would have meant that workers would be harshly penalized if the EEOC made a mistake, which would compel more workers to get an attorney to file before the EEOC. Given that many workers (especially those still out of work due to the alleged discrimination) can’t afford to hire a lawyer at that stage, those most in need would more often be out of luck.

Thankfully, even a Supreme Court that is hardly known for its compassion towards workers recognized the injustice presented by the case, and made the right decision. Having the spotlight on this issue will also hopefully lead to fewer balls being dropped at the EEOC, since the agency received a tongue-lashing at oral argument from Justice Scalia (who ultimately voted against the workers.) (See Law.com article.) Justice Scalia said to the Solicitor General’s representative Toby Heytens as soon as he started to argue, “Mr. Heytens, let me tell you going in 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.” (See Oral Argument Transcript at 47.)

Reaction to the decision was favorable in the mainstream media. The New York Times even issued a supportive editorial, stating, “The decision is noteworthy because it suggests that this court could be pulling back from what has often seemed like a knee-jerk inclination to rule for corporations over workers and consumers,” and “It is surprising and welcome to see the court apply any sort of permissive standard….” (See New York Times editorial.) FindLaw’s Joanna Grossman remarked, “The opinion is quite significant in that it departs both in tone and substance from recent anti-plaintiff rulings in employment discrimination cases. It is thus a welcome sign of at least a modicum of commitment on the Court’s part to enforcing the civil rights laws.” (See FindLaw article.)

It’s sad when a Supreme Court opinion is noteworthy precisely because it doesn’t completely eviscerate a worker’s case. But that’s the reality that employees and their lawyers routinely face in our courts. So it’s nice to win one here and there.

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