Employment Discrimination: Will SCOTUS get it right this time?
In the Spring it was the Ledbetter case--where the Supreme Court determined that a person has only 6 months from first receiving a pay check based on sex discrimination to file a sex discrimination lawsuit, even if every pay check she receives after the sixth month mark is also discriminatory.
Now, it's Fed Ex v. Holowecki. Yesterday, the Supreme Court heard oral arguments for the age discrimination case, which asks whether an employee loses her right to sue for age discrimination because she filed an intake form instead of a formal charge against her employer, Fed Ex, believing the intake form to be sufficient as evidence of her intent to file a lawsuit.
Even experienced employment lawyers on the case say they didn't know the difference between the forms, in terms of their "access to court" repercussions, until this case. Members of the Court are equally concerned about the effect of the law's ambiguity, and the EEOC's failure to provide clarity, on people with legitimate claims who are confused about what they have to do in order to secure their right to pursue the claim in court. Much of this concern was expressed as frustration toward the EEOC:
From Justice Scalia: "My main concern in this case, however the decision comes out, is to do something that will require the EEOC to get its act in order because this is nonsense."
And from Chief Justice Roberts to a lawyer for Fed Ex: “I just don’t understand your leap from government incompetence to saying the plaintiff loses.”
From TortDeform: Well, hopefully this time around Scalia, Roberts, and their cohort will channel this frustration into a decision that protects employees against discrimination, rather than shields employers from legal liability for discriminating. If the Supreme Court's head-butting with the EEOC actually works out in favor of the wronged employee, this will be a nice change from the Ledbetter result, where the Court disagreed with the Commission and tossed out a clearly valid sex discrimination claim on a mere technicality.