US Supreme Court Permissive Standard for Age Discrimination Suits

In a case from the Southern District of New York, Fed Ex couriers over the age of 40 sued their employer under the Age Discrimination in Employment Act (ADEA) alleging discriminatory employment practices in programs tying their compensation and continued employment to certain performance benchmarks favoring younger couriers and disfavoring older ones. Prior to suing, the employees filed with the EEOC an affidavit that described the problem and an “intake questionnaire” asking the EEOC to “please force Federal Express to end their age discrimination plan” instead of filing a formal “charge”. The employer moved to dismiss the complaint based on the ADEA's exhaustion requirements in §626(d) which provides that employees must first file a discrimination charge with the EEOC and wait 60 days before filing a lawsuit to allow the commission time to resolve the matter with the employer. The District Court dismissed the complaint based on the pre-suit notification language of the ADEA. The Second Circuit partially reversed at 440 F. 3d 558. The Supreme Court granted certiorari and issued its decision in Federal Express Corp. v. Holowecki yesterday.

In a 7-to-2 decision, the majority ruled against the employer’s strict exhaustion arguments and in favor of the employees who, with the support of the EEOC, advocated a more permissive standard. Justice Kennedy stated:

“If a filing is to be deemed a charge it must 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”.

If the litigants had been represented by counsel, one wonders whether the ruling would have had a different outcome as the Court noted that under its

“...permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA. Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”

The ruling is in marked contrast with last year’s Ledbetter v. Goodyear Tire and Rubber Co. where the court ruled 5 to 4 that employees complaining about discrimination in pay forfeited their right to sue if they did not file a formal complaint with the Equal Employment Opportunity Commission within 180 days of a manager’s discriminatory pay decision. The different outcomes result from the language in the relevant statutes. Both Title VII and the ADA expressly require the filing of a verified charge, the ADEA does not and lower courts have permitted ADEA claims to proceed upon the filing of an Intake Questionnaire, letter or other unverified document.

In a strong dissent, Justice Thomas criticized the malleability of the Court’s decision stating:

“Today the Court decides that a “charge” of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) is whatever the Equal Employment Opportunity Commission (EEOC) says it is…..Today’s decision 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.”

Source: Jurist Legal News and Research dated February 27, 2007