BLS Library Blog

In a case from the Southern District of New York, Fed Ex couriers over the age of 40 sued their employer under the Age Discrimination in Employment Act (ADEA) alleging discriminatory employment practices in programs tying their compensation and continued employment to certain performance benchmarks favoring younger couriers and disfavoring older ones. Prior to suing, the employees filed with the EEOC an affidavit that described the problem and an “intake questionnaire” asking the EEOC to “please force Federal Express to end their age discrimination plan” instead of filing a formal “charge”. The employer moved to dismiss the complaint based on the ADEA’s exhaustion requirements in §626(d) which provides that employees must first file a discrimination charge with the EEOC and wait 60 days before filing a lawsuit to allow the commission time to resolve the matter with the employer. The District Court dismissed the complaint based on the pre-suit notification language of the ADEA. The Second Circuit partially reversed at 440 F. 3d 558. The Supreme Court granted certiorari and issued its decision in Federal Express Corp. v. Holowecki yesterday.

In a 7-to-2 decision, the majority ruled against the employer’s strict exhaustion arguments and in favor of the employees who, with the support of the EEOC, advocated a more permissive standard. Justice Kennedy stated:

“If a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee”.

If the litigants had been represented by counsel, one wonders whether the ruling would have had a different outcome as the Court noted that under its

“…permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA. Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”

The ruling is in marked contrast with last year’s Ledbetter v. Goodyear Tire and Rubber Co. where the court ruled 5 to 4 that employees complaining about discrimination in pay forfeited their right to sue if they did not file a formal complaint with the Equal Employment Opportunity Commission within 180 days of a manager’s discriminatory pay decision. The different outcomes result from the language in the relevant statutes. Both Title VII and the ADA expressly require the filing of a verified charge, the ADEA does not and lower courts have permitted ADEA claims to proceed upon the filing of an Intake Questionnaire, letter or other unverified document.

In a strong dissent, Justice Thomas criticized the malleability of the Court’s decision stating:

“Today the Court decides that a “charge” of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) is whatever the Equal Employment Opportunity Commission (EEOC) says it is…..Today’s decision does nothing—absolutely nothing—to solve the problem that under the EEOC’s current processes no one can tell, ex ante, whether a particular filing is or is not a charge.”

Source: Jurist Legal News and Research dated February 27, 2007

Listen to this episode on BrooklynWorks.

In this podcast, we hear Professor Christopher Serkin explain the theories which he explores in his latest addition to legal scholarship in an article entitled Existing Uses: Retroactive Land Use Regulations and the Takings Clause. The article is a preliminary draft that is currently under revision and is expected to be published soon. Since joining the BLS faculty in 2005, Professor Serkin has continued his significant contributions to legal scholarship focusing on property, land use and local government. A list of selected works of Professor Serkin is available here.

Listen to this episode on BrooklynWorks.

Visiting Assistant Professor of Law Amy Gajda joins the faculty at Brooklyn Law School this spring from the University of Illinois – College of Law, where she is an Assistant Professor of Journalism and Law. While she is with BLS, Professor Gajda is teaching Mass Media and First Amendment and The Law of Higher Education. In today’s conversation, we discuss Prof. Gajda’s law review article What if Samuel D. Warren Hadn’t Married a Senator’s Daughter?: Uncovering the Press Coverage that Led to The Right to Privacy. The article discusses the impetus for the famous law review article The Right to Privacy by Samuel D. Warren and Louis Brandeis in 4 Harvard Law Review 193 (1890) available in HeinOnline. Publication of Prof. Gajda’s article is expected in an upcoming edition of the Michigan State Law Review.

In a major setback for opponents of the Atlantic Yards development project in downtown Brooklyn, the 2nd Circuit Court of Appeals affirmed the dismissal of a complaint challenging eminent domain action on the grounds that it violated the Public Use Clause of the Fifth Amendment. See the NY Times article reporting the decision. The Court ruled in Goldstein v. Pataki that the plaintiffs failed to demonstrate that the project’s public benefit was a “pretext” to benefit Bruce Ratner, the private developer behind the project.

The plaintiffs challenged the condemnation as a private taking in violation of the Fifth Amendment and alleged that the “public uses” the state agencies advanced for the project were pretexts to benefit Bruce Ratner whose company first proposed it and who serves as the Project’s primary developer. The “pretext” argument was based on the Supreme Court’s decision in Kelo v. City of New London decided in 2005. The Court of Appeals rejected the “pretext” claim stating:

“We do not read Kelo’s reference to “pretext” as demanding, as the appellants would apparently have it, a full judicial inquiry into the subjective motivation of every official who supported the Project, an exercise as fraught with conceptual and practical difficulties as with state-sovereignty and separation-of-power concerns. Beyond being conclusory, the claim that the “decision to take Plaintiffs’ properties serves only one purpose” defies both logic and experience.

“At the end of the day, we are left with the distinct impression that the lawsuit is animated by concerns about the wisdom of the Atlantic Yards Project and its effect on the community. While we can well understand why the affected property owners would take this opportunity to air their complaints, such matters of policy are the province of the elected branches, not this Court.”

In the two years since the Kelo decision, many states have introduced eminent domain reform legislation in response to overwhelming public disapproval of the ruling. The effectiveness of those legislative efforts is questioned in a well researched article entitled The Limits of Backlash: Assessing the Political Response to Kelo by Ilya Somin. The article suggests that widespread political ignorance may contribute to the ineffectiveness of most eminent domain reforms. The plaintiffs challenging the Atlantic Yards development project are far from politically ignorant. Unless the Supreme Court takes their case and overrules Kelo, their struggle against eminent domain in this case seems over.