Supreme Court Interprets EEOC Regulations As To What Constitutes A “Charge” Of Discrimination

In an opinion issued today, the U.S. Supreme Court found that an intake form and affidavit that requested the EEOC to take action on behalf of the complainant constituted a “charge” of discrimination under the EEOC’s regulations. The case is Federal Express v. Holowicki (the opinion can be read here: FedEx v. Holowecki).

Justice Thomas wrote a dissent, which was joined by Justice Scalia. The dissent opens with the following concise summary of the majority opinion: “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.” This is actually a rather apt summary, given that the majority opinion rests on deference to the administrative agency’s (i.e. the EEOC) interpretation of the statute. According to the dissent, “[t]he filing at issue in this case did not state that it was a charge and did not include a charge form; to the contrary, it included a form that expressly stated it was for the purpose of ‘pre-charge’ counseling. What is more, the EEOC did not assign it a charge number, notify the employer of the complainant’s allegations, or commence enforcement proceedings.”

Given those facts, how did the majority conclude that a charge had been filed in this case? The Court deferred to the EEOC’s internal policy of construing a document as a charge if it requests agency action and appropriate relief for the complainant. The Court noted that, under this permissive standard, many documents might be construed as a charge. Nevertheless, the Court found this consistent with the remedial purpose of the ADEA. The majority opinion concludes with encouragement to the EEOC to revise its forms and procedures to reduce the risk of future misunderstandings in this regard.

The actual ruling in this case will have very little direct impact on employers. The case presented a rather rare situation where a proper charge of discrimination was not completed by the complainant. It is the possible indirect effects of this decision that are more interesting.

First, seven Justices signed off on an opinion granting substantial deference to the EEOC’s regulations and the EEOC’s internal (in other words, nonpublic) interpretation of those regulations. Does this suggest that the current Court will be less likely to strike down regulations if directly challenged? Will agencies be able to defend their interpretation of regulations in the future based on nonpublic, internal “interpretations”?

Second, the Court noted that the “permissive” standard it approved was justified in part by the remedial nature of the ADEA. Many courts around the country rely on this “remedial” principle to avoid dismissing discrimination lawsuits based on procedural errors. Will the Court’s reliance on this justify additional relaxation in the pre-suit filing requirements in other areas? Only time, and more litigation, will tell.