Jottings By An Employer's Lawyer

Wednesday, February 27, 2008

Supreme Court in a Deferential Mood in Employment Law Decisions

Yesterday, the Supreme Court gave deference to a trial judge's decision on an evidentiary ruling, see "Me Too Evidence" - A Do Over"; today it's the EEOC's turn as the Court finds that the Commission's decision to treat an unsworn intake questionnaire combined with an affidavit as a "charge" is within their discretion. Federal Express Corp. v. Holowecki (S.Ct 2/27/08) [pdf].

It did take quite a bit more explanation, a suggestion to the EEOC that it could do better, and lost two justices along the way. Justice Thomas dissented and was joined by Justice Scalia. Hopefully there wasn't anything in Justice Thomas background as the former head of the EEOC that made him feel as if the agency was not deserving of deference.

To the extent that any hope remained that an employer could argue it was protected against a lawsuit because the EEOC failed to give it notice, it was extinguished. Here, the company only learned about the charge when a suit was filed, a fact Justice Kennedy described as "unfortunate" but obviously not irreparable.

Although this opinion could have some significance, I again don't see it as a "sea change,*" to use a term recently in play in the current presidential contest, but I suppose time will tell.

*Since the phrase is almost always improperly used and is greatly over-used, it has suffered a swamp change into something dull and tiresome. Avoid the phrase; otherwise you will irritate those who know it and puzzle those who do not.

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