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Justices Let Age Bias Lawsuit Move Ahead

By Robert Barnes
Washington Post Staff Writer
Thursday, February 28, 2008

The Supreme Court yesterday gave the benefit of the doubt to a FedEx worker who claimed age discrimination, and said her case should not be thrown out because of mistakes made by the Equal Employment Opportunity Commission.

The court ruled 7 to 2 that Patricia Kennedy's suit could move forward, even though her employer had not been notified by the EEOC that Kennedy and others had made charges against it, as the Age Discrimination in Employment Act requires.

The act says that a formal charge must be made with the agency before a lawsuit can be filed, and that in that interim, the EEOC is to notify the company, investigate the claim and seek conciliation between the employer and employee before lawyers and judges become involved.

At oral argument, it became clear that the form Kennedy filed with the EEOC sometimes was considered by the agency to constitute a formal charge, and sometimes not. Justices criticized the government for the inconsistency, and it responded that it is changing its policies.

Justice Anthony M. Kennedy's opinion said that because of the lack of clarity on the part of EEOC, "both sides lost the benefits" of the informal dispute resolution process, and it again criticized the agency.

But the majority said that the form and documents Patricia Kennedy filed could be considered a formal charge and that she should be allowed to proceed with her lawsuit.

Justices Clarence Thomas and Antonin Scalia dissented, saying the court's "malleability" was wrong.

"Given the court's utterly vague criteria, whatever the agency later decides to regard as a charge is a charge -- and the statutorily required notice to the employer and conciliation process will be evaded in the future as it has been in this case," wrote Thomas, who was head of the EEOC for a time in the 1980s.

The decision was the court's second in two days regarding the age discrimination statute, both of them rather narrowly drawn. The case is Federal Express Corp. v. Holowecki.

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