In the first oral argument for an employment law case this session on Tuesday, November 6, justices became irritated in trying to define exactly what constitutes a formal charge under EEOC procedures.

The case involves Patricia Kennedy, a FedEx courier who alleges that the pay 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 a four-page affidavit with the agency.

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.

Under the Age Discrimination in Employment Act, a charge must be filed 60 days before beginning a lawsuit in federal court. A district court ruled that the paperwork Kennedy filed with the EEOC in 2001 did not constitute a formal charge, and dismissed her case. The 2nd Circuit Court of Appeals reversed the decision.

Now the Supreme Court is trying to parse the EEOC’s charge system. The agency has created a formal charge document, called Form 5. It also provides an intake questionnaire, called Form 283. Sometimes the EEOC treats the intake paper as a charge and sometimes as an informal document.

FedEx’s lawyer argued that the company was not given timely notification of charges against it before Kennedy entered the lawsuit with her colleagues, denying FedEx the opportunity to settle the matter out of court.

A lawyer for Kennedy maintained that the content of the intake questionnaire qualifies it as a formal charge and that the person making the discrimination claim shouldn’t suffer because the EEOC failed to formally notify FedEx of the claim.

During the hearing, Supreme Court justices lost their patience while examining the EEOC process.

“I think the problem here is the EEOC, not anyone else,” said Justice Antonin Scalia. “What kind of agency is this?”

Later, Scalia said that if the EEOC process was clearer, courts wouldn’t be burdened with trying to figure out whether someone intended to formally file discrimination charges against an employer.

No matter how he and his colleagues rule on the case, Scalia wants to send a message to the agency.

“My main concern is to do something that will cause the EEOC to get its act together,” he said. “This whole situation can be traced back to the agency.”

It wasn’t just the conservative Scalia who became animated. At one point in the argument, Justice Stephen Breyer pressed a government attorney to provide the formal definition of a charge.

“Where do I read that?” Breyer demanded as he brandished a pencil with a flourish and jotted down the references.

But as is typical in Supreme Court oral arguments, the justices were tough with both sides. The FedEx lawyer, Connie Lensing, was questioned about why the company sought dismissal over a technical notice violation that could have been caused by an EEOC mistake.

“I don’t understand your leap from government incompetence to saying the plaintiff loses,” said Chief Justice John Roberts.

Justice Samuel Alito indicated the EEOC intake and charge documents were closely related.

“I don’t see much difference in the substance of these two forms,” he said.

Lensing maintained that if a company is not promptly notified of a charge, it lacks the time to address the allegation informally with the employee. In addition, stale claims could come to life years after an intake questionnaire is filled out, if that document carries the weight of a charge.

“It’s not the proper thing to do because there’s a big difference in conciliation after a lawsuit is filed,” she said.

But David Rose, Kennedy’s lawyer, pointed out that FedEx did not try to conciliate any of the 247 age discrimination cases filed against it with the EEOC between 1997 and 2007.

—Mark Schoeff Jr.