Complainant’s EEOC Intake Questionnaire & Signed Affidavit
Were Sufficient “Charge”

by Ted Olsen

Employers are very familiar with the Equal Employment Opportunity Commission's Charge of Discrimination form. Under the law, the filing of such a "charge" is one of the administrative steps that must be exhausted by a complainant before he or she may bring a discrimination case in court against an employer.

Last week, in Federal Express Corp. v. Holowecki, Case No. 06-1322, 552 U.S. --- (Feb. 27, 2008), the Supreme Court considered whether a plaintiff's completion of an EEOC Form 283 "Intake Questionnaire," and an attached signed affidavit were sufficient to be deemed a charge for purposes of the Age Discrimination in Employment Act. The Supreme Court ruled that the two documents could lawfully be considered a charge under the ADEA.^

The employer in Federal Express won at the district court level, but lost on appeal, arguing that the plaintiff's ADEA case was barred because she had not filed a charge at least 60 days before she filed suit. See 29 U.S.C. § 626(d) ("No civil action . . . may be commenced . . . until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission.").

The plaintiff had not signed or filed a Charge of Discrimination form. Rather, she had completed a Form 283 "Intake Questionnaire," and submitted it to the EEOC with an attached signed affidavit elaborating on her contention that Federal Express programs tying driver compensation to certain performance benchmarks discriminated against older workers. Neither document stated that it was a "charge." On the contrary, the Intake Questionnaire form stated that its purpose was for the purpose of "pre-charge" counseling. The EEOC did not assign a charge number to either document, and did not process the documents as a "charge." Most notably, the EEOC did not notify the employer that the papers had been submitted or of the complainant's allegations, which the EEOC does when a Charge of Discrimination is filed against an employer. After the employer raised this procedural defense in the district court case, the plaintiff returned to the EEOC and filed a formal Charge of Discrimination. During the litigation, the EEOC entered an appearance in the case and argued that the plaintiff's original EEOC papers were sufficient to serve as a "charge."

The Supreme Court, by a 7-2 vote, ruled that the papers were a sufficient "charge" for the purpose of exhausting the charge-filing requirements of the ADEA. The Court acknowledged that the EEOC had issued various public regulations and protocols, defining the term "charge" inconsistently, and observed that these papers did not satisfy many of the EEOC's definitions. Ultimately, however, the majority concluded that the EEOC's position was a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of a statute it enforces. In reaching this conclusion, the Court said that papers given to the agency may be deemed a charge if they (1) name the charging party, (2) identify the accused employer, (3) allege unlawful discrimination, and (4) request the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employee and employer.

Many defense attorneys were surprised that the Supreme Court chose to hear this case, as it seemingly relates to a unique procedural situation of rather limited significance. If this decision has broader meaning, its implications probably are not favorable to employers. First, charging parties who miss the statutes of limitations with their formal Charges of Discrimination may argue that other preliminary papers they gave the EEOC should be deemed their charges. Second, the Supreme Court's decision in Federal Express shows substantial deference to the EEOC's interpretation and administration of the employment discrimination laws. Considering how the Supreme Court's reading of these laws has often contradicted the Commission's interpretations of such laws, and how the agency continues to issue some attenuated interpretations of the laws, this deference could prove to be a significant concern.

Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

	Contact Us Services Attorneys News and Events Publications About the Firm Diversity Careers Events and Registration Speaking Engagements Press Releases Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Summer Associates Support Staff News and Events Home > News and Events > View Complainant’s EEOC Intake Questionnaire & Signed Affidavit Were Sufficient “Charge” by Ted Olsen Employers are very familiar with the Equal Employment Opportunity Commission's Charge of Discrimination form. Under the law, the filing of such a "charge" is one of the administrative steps that must be exhausted by a complainant before he or she may bring a discrimination case in court against an employer. Last week, in Federal Express Corp. v. Holowecki, Case No. 06-1322, 552 U.S. --- (Feb. 27, 2008), the Supreme Court considered whether a plaintiff's completion of an EEOC Form 283 "Intake Questionnaire," and an attached signed affidavit were sufficient to be deemed a charge for purposes of the Age Discrimination in Employment Act. The Supreme Court ruled that the two documents could lawfully be considered a charge under the ADEA.^ The employer in Federal Express won at the district court level, but lost on appeal, arguing that the plaintiff's ADEA case was barred because she had not filed a charge at least 60 days before she filed suit. See 29 U.S.C. § 626(d) ("No civil action . . . may be commenced . . . until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission."). The plaintiff had not signed or filed a Charge of Discrimination form. Rather, she had completed a Form 283 "Intake Questionnaire," and submitted it to the EEOC with an attached signed affidavit elaborating on her contention that Federal Express programs tying driver compensation to certain performance benchmarks discriminated against older workers. Neither document stated that it was a "charge." On the contrary, the Intake Questionnaire form stated that its purpose was for the purpose of "pre-charge" counseling. The EEOC did not assign a charge number to either document, and did not process the documents as a "charge." Most notably, the EEOC did not notify the employer that the papers had been submitted or of the complainant's allegations, which the EEOC does when a Charge of Discrimination is filed against an employer. After the employer raised this procedural defense in the district court case, the plaintiff returned to the EEOC and filed a formal Charge of Discrimination. During the litigation, the EEOC entered an appearance in the case and argued that the plaintiff's original EEOC papers were sufficient to serve as a "charge." The Supreme Court, by a 7-2 vote, ruled that the papers were a sufficient "charge" for the purpose of exhausting the charge-filing requirements of the ADEA. The Court acknowledged that the EEOC had issued various public regulations and protocols, defining the term "charge" inconsistently, and observed that these papers did not satisfy many of the EEOC's definitions. Ultimately, however, the majority concluded that the EEOC's position was a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of a statute it enforces. In reaching this conclusion, the Court said that papers given to the agency may be deemed a charge if they (1) name the charging party, (2) identify the accused employer, (3) allege unlawful discrimination, and (4) request the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employee and employer. Many defense attorneys were surprised that the Supreme Court chose to hear this case, as it seemingly relates to a unique procedural situation of rather limited significance. If this decision has broader meaning, its implications probably are not favorable to employers. First, charging parties who miss the statutes of limitations with their formal Charges of Discrimination may argue that other preliminary papers they gave the EEOC should be deemed their charges. Second, the Supreme Court's decision in Federal Express shows substantial deference to the EEOC's interpretation and administration of the employment discrimination laws. Considering how the Supreme Court's reading of these laws has often contradicted the Commission's interpretations of such laws, and how the agency continues to issue some attenuated interpretations of the laws, this deference could prove to be a significant concern. Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2008 Sherman & Howard L.L.C. March 3, 2008 Copyright 2000-2008 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use

Complainant’s EEOC Intake Questionnaire & Signed Affidavit Were Sufficient “Charge”

Complainant’s EEOC Intake Questionnaire & Signed Affidavit
Were Sufficient “Charge”