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Not a "Pro-Business" Supreme Court

The Supreme Court is not, as the media claims, "pro-business" in discrimination cases, as I pointed out below. That's buttressed by today's decision against employers in Federal Express v. Holowecki. The Age Discrimination in Employment Act (ADEA) bars employees from suing until 60 days after they've filed a charge of discrimination with the EEOC. That's intended both to provide notice to the employer, and make settlement of the case prior to litigation possible. In Holowecki, the employer never received that notice, because the employee merely filled out an EEOC intake questionnaire, not a formal charge of discrimination.

But the Supreme Court, rejecting the view of at least two circuit courts, held that intake questionnaires qualify as a charge of discrimination, even if the employer doesn't receive notice of the claim prior to suit. It did so even though it admitted that "the employer's interests, in particular, were given short shrift, for it was not notified of [plaintiff]'s complaint until she filed suit." And it so ruled even though the EEOC's former chairman, Justice Thomas, dissented, stating that an EEOC intake questionnaire simply is not a charge of discrimination. The Supreme Court's ruling may or may not have been consistent with the language of the statute, but it certainly wasn't pro-business, depriving businesses of notice of potential lawsuits.

On the other hand, at least it doesn't raise potential First Amendment problems, the way the Court's ruling against business in another discrimination case (Burlington Northern v. White (2006)) did.

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.