The three lawyers arguing the case matched it in obscurity. Two were first-timers at the court, and the third last appeared there in 1965. For these reasons, the courtroom figured to be nearly empty.
That it was not — in fact, the seats reserved for members of the Supreme Court bar were almost full — reflected the fact that the last time the Roberts court took up an obscure employment discrimination case, the 5-to-4 result quickly became a cause célèbre and a signature decision of the entire term.
That was last May in the Ledbetter decision, in which the court imposed a tight time frame for filing pay discrimination cases, rejecting the view of the Equal Employment Opportunity Commission that such lawsuits are timely as long as a current paycheck reflects a prior discriminatory pay decision.
The new case challenges another pro-employee position of the Equal Employment Opportunity Commission, its interpretation of the type of document an employee must file to initiate a charge of job-related age discrimination.
The commission takes a relaxed view, accepting a written complaint that reflects an employee’s intent to pursue a case, even if the document is not the official “Form 5” designated for a formal “charge of discrimination.”
The federal appeals court in New York upheld the commission’s position, reinstating an age discrimination suit that a group of couriers had filed against Federal Express. The Federal District Court had dismissed the suit, filed in April 2002, on the ground that the 14 plaintiffs had failed to file the required initial charge of discrimination with the commission before going to court.
Instead of filling out Form 5, Patricia Kennedy, the lead plaintiff, had filled out Form 283, which the commission calls an “intake questionnaire.” Its purpose is to describe the accusations of discrimination enough to enable commission officials to advise an employee whether those accusations justify moving to the stage, a formal charge. Under commission rules, a formal charge is followed promptly by notice to the employer.
In reinstating the lawsuit, the United States Court of Appeals for the Second Circuit agreed with the commission that the intake questionnaire should be treated as a charge, because it had enough information and showed the intent to make a formal accusation.
Federal Express, in its appeal, argues that this laxity and inconsistency in the procedures deprives employers of what various federal antidiscrimination laws meant to provide them — formal notice of an employee’s complaint and the chance to resolve it without going to court.
Giving the employer that chance is “a requirement, an indispensable prerequisite to a lawsuit,” Connie L. Lensing, a lawyer for Federal Express making her first Supreme Court argument, told the justices. “A charge needs to clearly delineate that it’s a charge,” Ms. Lensing said.
The two lawyers on the other side said the purpose of the flexibility was to avoid trapping employees in unfamiliar paperwork.
David L. Rose, representing the plaintiffs, said that as a lawyer experienced in employment discrimination cases, he was not aware of the difference between the two forms before taking this case. Mr. Rose last argued a Supreme Court case in 1965.
Arguing for the commission, Toby J. Heytens, an assistant to the solicitor general who was making his first Supreme Court argument, said “the vast majority of people who initiate E.E.O.C. proceedings are lay people who aren’t familiar with the statute.”
The court’s response to this clash between formality and practicality was what the courtroom audience had come to see. Would the case, Federal Express Corporation v. Holowecki, No. 06-1322, turn into this term’s Ledbetter case?
The answer appeared to be probably not.
While the Bush administration disavowed the commission’s policy in the Ledbetter case and argued on the employer’s behalf, here the solicitor general’s office supported the policy.
The justices also seemed to want to shield employees from the consequences of the commission’s failure to follow the letter of the law. “I just don’t understand your leap from government incompetence to saying the plaintiff loses,” Chief Justice John G. Roberts Jr. said to Ms. Lensing.
The commission came in for harsh criticism from both ends of the bench for failing to give clear advice about legal requirements.
Only Justice Clarence Thomas, who spent eight years as head of the commission, said nothing.
As the other justices puzzled over regulations adopted during his tenure there, he leaned back in his chair and stared at the ceiling.