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The Supreme Court Speaks: An Informal "Intake Questionnaire" Is Sufficient to Constitute a "Charge" of Age Discrimination

January 16, 2009

The Supreme Court Speaks: An Informal "Intake Questionnaire" Is Sufficient to Constitute a "Charge" of Age Discrimination

January 16, 2009

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March 11, 2008

In Federal Express Corp. v. Holowecki, a 7-2 Supreme Court held that as long as an employee submits documents to the EEOC that include his/her name and allegations of discrimination, and request that the agency take remedial action to protect the employee’s rights, he/she has satisfied the administrative requirement of filing a “charge” with the EEOC and may, sixty days thereafter, file a lawsuit under the Age Discrimination in Employment Act (“ADEA”).

What happened in the Holowecki case?

The plaintiffs, a group of 14 current and former FedEx couriers, filed a class action lawsuit in New York in which they sought to represent a class of all FedEx couriers over the age of 40 who were subject to alleged acts of age discrimination by FedEx. The ADEA states that a plaintiff may not file a lawsuit under the ADEA “until 60 days after a charge of unlawful discrimination has been filed” with the EEOC. One of the plaintiffs, Patricia Kennedy, had filed an “Intake Questionnaire,” which included a six-page affidavit alleging that FedEx was discriminating against older couriers, but did not submit a formal EEOC “Charge” form. The EEOC did not investigate the allegations in Ms. Kennedy’s questionnaire, initiate the pre-suit conciliation and mediation process, or even notify FedEx about of Ms. Kennedy’s complaint.

In the trial court, FedEx filed a motion dismiss Ms. Kennedy’s claims on the basis that she had not satisfied the prerequisite of filing a formal charge with the EEOC. The trial court agreed and dismissed Ms. Kennedy’s claims. Ms. Kennedy promptly appealed the court’s decision.

On appeal, the Second Circuit court disagreed and held that Ms. Kennedy’s intake questionnaire was sufficient to satisfy the administrative prerequisite. The Second Circuit looked to the EEOC regulations and concluded that an Intake Questionnaire can constitute a charge if it expresses the filer’s intent to activate the EEOC’s enforcement process.

On February 27, 2008, in a 7-2 opinion, the Supreme Court affirmed the Second Circuit’s decision. For its definition of “charge,” the Court looked to EEOC internal directives, under which documents constitute a “charge” as long as they include a request for the Commission to take remedial action on behalf of the employee.

The Court began its opinion with a “cautionary preface,” noting that the statutory waiting periods for filing suit under the ADEA and filing a suit under Title VII are different. The ADEA requires only that the employee file a charge before filing suit, and the employee’s right to sue does not depend upon the EEOC actually taking action. Whereas, under Title VII, an employee cannot file suit until he/she receives a Notice of Right to Sue from the EEOC.

Justice Kennedy, in writing for a majority of the Court, expressed grave concern that EEOC’s failure to take action cost both FedEx and Ms. Kennedy the benefit of an inexpensive, informal dispute resolution process, but explained that the trial court could remedy this loss by ordering early mediation of the case.

How does the Supreme Court’s decision impact employers?

By finding that a document filed with the EEOC constitutes a “charge of discrimination” as long as it (i) states the employee’s name and allegation of discrimination and (ii) requests that the Commission take remedial action, employers may now be sued for age discrimination without ever having been notified that the plaintiff/employee invoked the administrative process.

After recovering from this shocking reality, prudent employers will still remember that:


  • The Holowecki definition of “charge” applies only in ADEA age discrimination cases. In Title VII cases, employees still must wait for the EEOC to take action and send a Notice of Right of Sue (which is also sent to the employer) before filing a civil lawsuit.
  • The Holowecki decision did not modify the statute of limitations for bringing ADEA claims. Therefore, employees still must file a “charge” within 300 days of the alleged discriminatory act. After 60 days, the employee may file suit at any without waiting for a Notice of Right to Sue. If the employee does receive a Notice of Right to Sue, he/she must file suit within 90 days.
  • Even under Holowecki, not all Intake Questionnaires or other “miscellaneous” EEOC documents will suffice to be a charge. Instead, the Court clearly held that the document must include a clear request that the EEOC take action in response to the employee’s complaint of discrimination.

As a result of the Supreme Court’s admonishments in the Holowecki case, employers also should expect more EEOC investigations in ADEA cases. In a press release, the EEOC stated: The “EEOC has taken steps to ensure timely notification to respondents of receipt of intake questionnaires or other correspondence that constitute charges. We will continue to review our procedures as the court has suggested to ensure that they are clear to the public and consistent with our statutes and regulations.” Already, the EEOC has docketed 10% more charges this fiscal year than a similar period last fiscal year.

Click here to read the full Supreme Court decision.

The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.