On February 27, 2008, the Supreme Court upheld the Equal Opportunity Commission's (EEOC) position that, in addition to the form titled "Charge of Discrimination," certain preliminary filings with the agency also can be considered a "charge" of discrimination for purposes of timelines under the Age Discrimination in Employment Act (ADEA). In Federal Express Corp. v. Holowecki, No. 06-1322 (February 27, 2008), the employee filed an intake questionnaire with the EEOC and attached a detailed affidavit supporting her contention that the employer discriminated against older couriers in violation of the ADEA. When the employee and others filed suit against the employer, the employer moved to dismiss on the ground that the employee had not filed a charge of discrimination at least 60 days before filing suit, as required by the ADEA. 

The Supreme Court held that the employee's intake questionnaire and detailed affidavit constituted a "charge" of discrimination within the meaning of the ADEA. First, the court observed that to be considered a "charge," a filing must (1) be in writing, (2) name the prospective respondent, (3) generally allege the discriminatory conduct, (4) provide the name, address, and phone number of the charging party, (5) identify the number of employees employed by the charged employer, and (6) include a statement indicating whether the charged party had initiated any state proceedings. See 29 C.F.R. § 1626.6, 1626.8. Second, the court stated that to be considered a charge, the filing also "must be reasonably construed as a request for the agency to take some remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee." The Supreme Court ruled that the employee's intake questionnaire and accompanying affidavit met theses standards because (1) the intake questionnaire contained all of the information required by the EEOC's regulations and (2) the affidavit, which asked the EEOC to "[p]lease force Federal Express to end their age discrimination plan so we can finish out our careers absent the unfairness and hostile work environment created within their application," constituted an adequate request for remedial action by the EEOC.

The decision in Holowecki means that an employee may have filed a "charge" of age discrimination well before the date reflected on the Charge of Discrimination form the EEOC provides to an employer to initiate formal proceedings. Although Holowecki dealt only with the ADEA, these principles will likely be applied to the other statutes the EEOC administers and enforces. See 29 C.F.R. § 1601.11, 1601.12(a).

Thus, an employer that receives a Charge of Discrimination form that is untimely on its face will need to obtain additional information from the EEOC regarding the employee's other filings to determine the timeliness of the charge; however, EEOC regulations generally have not permitted disclosure of such information to an employer until after the administrative proceedings had concluded. The decision in Holowecki may require the EEOC to revise its regulations and procedures so that it can provide such information to employers while the charge is pending.