November 8, 2007
Mekesha Montgomery

The Supreme Court recently heard arguments regarding whether or not an age discrimination suit against FedEx can proceed when the EEOC failed to inform FedEx of the charge made against them.  A transcript of the proceedings indicates that the Court was not pleased with the EEOC’s failure to do its job. 

On Tuesday, November 6, 2007, the Untied States Supreme Court heard arguments in a case filed by fourteen present and former FedEx employees who claim that FedEx has engaged in a pattern and practice of age discrimination.  Although FedEx courier Patricia Kennedy filed a complaint with the EEOC regarding her allegations of age discrimination, the EEOC never notified FedEx of the complaint.  Federal law requires employers to be notified by the EEOC of a complaint made against them before a lawsuit can be filed so that the company can investigate and attempt to resolve the complaint before submitting the issue to a court.  FedEx cited this requirement in arguing that the lawsuit should be dismissed.  The justices did not appear to be convinced.

Although Chief Justice Roberts acknowledged that the law requires FedEx to be notified of a complaint, he then quickly stated to FedEx’s counsel “But I don’t understand your leap from government incompetence to the plaintiff loses.” 

Justice Antonin Scalia was a bit more direct in his evaluation of the EEOC.  “My main concern in this case . . . is to do something that will require the EEOC to get its act in order because this is nonsense,” Scalia noted.   
 
Also noteworthy (and ironic) was that the lawyer representing the FedEx employees assured that Court that the EEOC had indeed received the employee’s complaint because he sent it by FedEx!

More than two justices must side the with FedEx employees in order for them to prevail – but it appears that they have Scalia and Roberts in their corner.  The Court will most likely issue a decision in the next few months.    

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