In a 7-2 opinion handed down on Wednesday, February 27, the court acknowledged that the suit did not follow the procedures laid out in the Age Discrimination in Employment Act (ADEA), which says a civil procedure can’t begin until 60 days after a charge has been filed with the Equal Employment Opportunity Commission.

Florida mishandled the case and that the suit began without giving the EEOC a chance to notify the company or initiate mediation procedures.

Nonetheless, the Supreme Court majority was reluctant to punish employees for an EEOC mistake.

“[U]ndoubted deficiencies in the agency’s administration of the statute and its regulatory scheme are not enough … to deprive the agency of all judicial deference,” wrote Justice Anthony Kennedy for the majority. “Some degree of inconsistent treatment is unavoidable when the agency processes over 175,000 inquires a year.”

The majority also endorsed the EEOC’s stance that a charge occurs whenever a complainant asks the agency to act against an employer.

In a stinging dissent, Justice Clarence Thomas characterized the opinion as “vague” and “vacuous.” Thomas, a former EEOC chair, was joined by Justice Antonin Scalia.

Thomas wrote that the majority decided that “a ‘charge’ of age discrimination … is whatever the [EEOC] says it is.”

Business advocates applauded Thomas. They assert that companies would be vulnerable to stale claims if they are not given prompt notice of a suit.

The case involves Patricia Kennedy, a FedEx courier who alleges that the pay and performance policies the giant delivery company instituted in 1994 and 1995 discriminate against older workers.

On December 3, 2001, she filled out an EEOC intake questionnaire and submitted an affidavit. On April 30, 2002, Kennedy and several of her FedEx colleagues filed an age discrimination lawsuit. Kennedy filed her own formal charge of discrimination with the EEOC on May 30, 2002.

A district court ruled that the paperwork Kennedy filed with the EEOC in 2001 was insufficient and dismissed her case. The 2nd Circuit Court of Appeals reversed the decision.

The Supreme Court upheld the appeals court ruling, saying that Kennedy had asked the EEOC to act in her affidavit.

But Thomas says that document was open to interpretation.

“Her request to ‘force Federal Express to end their age discrimination’ could have been met by the agency’s beginning the interviewing and counseling process that would ultimately lead to a charge,” Thomas wrote.

David Ritter, chair of the labor and employment group at Neal, Gerber & Eisenberg in Chicago, said administrative procedures are important.

“Companies need some certainty and finality in terms of process,” he said. “The rules are there for a reason. They protect both sides.”

In light of the court majority not formulating a definition of a charge, more ambiguous cases could emerge in the future, said Debra Friedman, a partner at Cozen O’Connor in Philadelphia.

“We can expect further inconsistencies in how the EEOC and the courts determine what is sufficient to constitute a charge,” she said. “There’s no magic word that has to appear in either an intake questionnaire or an affidavit.”

Kennedy urged the EEOC to revise its forms and procedures to provide more clarity. In the oral argument, the agency said that improvements already have been made.

“The ball is really in the EEOC’s court to do a better job of processing charges,” said Will Deveney, a partner at Elarbee Thompson in Atlanta. “I don’t see the court getting back into this particular issue again for some time.

—Mark Schoeff Jr.