June 4, 2007

The Supreme Court granted certiorari today in one case of interest to the business community:

Age Discrimination--Requirement of an EEOC Charge--Intake Questionnaire

Under the Age Discrimination in Employment Act (“ADEA”), an aggrieved party must file a “charge” of discrimination with the Equal Employment Opportunity Commission (“EEOC”) before commencing litigation and within a prescribed period after the alleged unlawful practice occurred. See 29 U.S.C. § 626(d). In this case, an employee who complained of age discrimination submitted an EEOC “Intake Questionnaire” form, along with an affidavit--but not a separate EEOC “Charge of Discrimination” form--within the requisite period. After receiving the plaintiff’s Intake Questionnaire, the EEOC neither informed the employer of the grievance nor initiated an investigation, as it generally does upon the receipt of a “Charge.” The employee filed the agency’s “Charge” form some time later, after filing a putative class-action lawsuit. The Court granted certiorari in Federal Express Corp. v. Holowecki, No. 06-1322, to decide whether, under these circumstances, an EEOC Intake Questionnaire satisfies the ADEA’s requirement that a “charge” of discrimination be filed as a precondition to filing a lawsuit.

In the decision below, the Second Circuit held that it does, reversing the district court’s dismissal of the lawsuit as time-barred. See 440 F.3d 558 (2006). The court of appeals noted that the ADEA does not define the term “charge,” and EEOC regulations impose only minimal requirements, including that the charge be a “writing” that names the employer and “generally describes the alleged discriminatory acts.” Id. at 566. In addition, the Second Circuit held--as have a number of other circuits--that a “charge” must manifest an individual’s intent to have the agency initiate its investigatory and conciliatory processes, a requirement that the court found to be met here. See id. at 566-67. 

Other circuits have taken a stricter approach, holding that an Intake Questionnaire qualifies as a charge of discrimination under the ADEA only in rare circumstances, such as when the EEOC treats the questionnaire as if it were a charge and the employee does not subsequently file a “Charge” form.

The Court’s resolution of this issue is important to employers not only because it will directly affect the number of discrimination suits that will be allowed to proceed in court but also because it will have an impact on opportunities for conciliation and resolution of disputes prior to litigation. Absent an extension, which is likely, amicus briefs in support of the petitioner will be due on July 19, 2007; amicus briefs in support of the respondent will be due 35 days after petitioner’s brief is filed. Any questions about this case should be directed to David Gossett (202-263-3384) in our Washington, DC office.

Today the Supreme Court also invited the Solicitor General to file a brief expressing the views of the United States in the following case of interest to the business community:

Teck Cominco Metals v. Pakootas, No. 06-1188. This petition for certiorari presents two questions. The first question is whether the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) applies to a Canadian company that disposed of hazardous substances at a Canadian facility in compliance with Canadian law if the flow of surface water carried some of that substance into the United States. The second question is whether a person who disposes of a hazardous substance on another’s property without the aid of a third party may be liable as an “arranger” under CERCLA, 42 U.S.C. § 9607(a)(3).

The general editor of the Docket Report is David Gossett in our Washington, DC office, who can be reached at dgossett@mayerbrown.com or 202-263-3384.