The Ledbetter and Holowecki Employment Discrimination Decisions
Deal with a Procedural Deadline and with Form, Respectively

UPDATE (April 27, 2008):  New York Times columnist Gail Collins pointed out in an April 26th op-ed that Senator John McCain opposes a legislative attempt to overturn Ledbetter because the bill “opens us up for lawsuits, for all kinds of problems and difficulties.”  In other words, she reasons, McCain believes employers should be motivated to hide employment discrimination for 180 days. After that EEO Complaint-filing deadline passes, illegal conduct cannot be challenged in court, even if the employee was not yet aware of it. How is that fair?

             Two recent Supreme Court decisions, Ledbetter v. Goodyear Tire and Rubber Company[1] and Federal Express Corporation v. Holowecki[2] are not inconsistent. The former addresses the timeliness of a discrimination charge and the latter deals with the charge’s content.

 

            In Ledbetter, a 5-to-4 opinion by Justice Samuel Alito held that a claim of pay discrimination must be filed within 180 days of an employer’s adverse pay decision. Ledbetter had not filed her charge of pay discrimination within that window of opportunity; however, she argued the discrimination was continuing with every paycheck she received containing less money for her than for male co-workers similarly situated. In other words, the Supreme Court determined that Ledbetter had filed too late to challenge conduct by her employer occurring more than six months earlier.

 

            On the other hand, Holowecki’s paperwork was filed before the deadline. The questions in his case were what the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq., considers a “charge” of discrimination; and whether his filing complied with the definition. The definition in the regulations, 29 CFR § 1626.3 (2007), and elsewhere was not clear; so the Supreme Court did some extrapolating in order to conclude that Holowecki stated a valid claim.

 

            The 7-to-2 majority (with Justices Thomas and Scalia dissenting) applied a four-step rationale in finding that Holowecki’s intake form and 6-paged affidavit were a valid EEOC charge. (1) The form and affidavit met all the substantive criteria of the regulations; (2) the employee clearly asked in his affidavit for EEOC to end the discrimination; (3) EEOC itself considered the paperwork sufficient to constitute a charge; and (4) Holowecki was pro se, entitling him to more latitude that might be accorded an attorney.

 

            In other words, even though their Supreme Court majorities are different, the opinions in Ledbetter and Holowecki are neither at odds with each other nor particularly surprising: The message to charging parties is that EEOC claims must be filed on time; and the sufficiency of an ADEA charge depends on content; counsel; and more than anything else, condonation by EEOC.

[1] LILLY M. LEDBETTER v. THE GOODYEAR TIRE & RUBBER COMPANY, No. 05-1074. ___ US ___ (May 29, 2007).

 

[2] Paul HOLOWECKI v. FEDERAL EXPRESS CORPORATION, No. 06-1322, ___ US ___ (February 27, 2008).