USA: Age bias is as wrong as race bias. The Equal Employment Opportunity Commission receives complaints, alerts employers, leads to either reconciliation or a lawsuit. The Age Discrimination in Employment Act covering workers 40 years and up says complaining workers must file an EEOC ‘charge’ at least 60 days before appearing in court. Meantime, the EEOC is to tell the employer of the prolem and try to resolve the dispute informally.

In 2002, FedEx workers complained, led by Patricia Kennedy, who completed the EEOC questionnaire but not also the more formal ‘charge’ form on time. The EEOC is siding with the workers, saying the questionnaire filled the requirements. A judge threw out a lawsuit because the formal charge wasn’t filled out on time. The US Court of Appeals reinstated the case in 2006, saying Kennedy had fulfilled the basic requirements in her first filing, even though the EEOC didn’t notify the employer. FedEx appealed to the Supreme Court.

Assistant Solicitor General Toby Heytens said the justices should defer to the EEOC’s interpretation of its regulations. Supreme Court Chief Justic John Roberts said, ‘Why should we defer to an agency regulation with the people in the agency hardly ever follow it?’ The Court is angry with the EEOC for not telling her the correct procedures. Roberts said to the FedEx lawyer, ‘I just don’t understand your leap from government incompetence to saying the worker loses.’ Justice Clarence Thomas, who chaired the EEOC during 1982-1990, sat in his customary silence, rocked in his chair, looked at the ceiling. Justice Antonin Scalia said EEOC regulations are confusing and contradictory and ‘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. This whole situation can be traceable back to the agency and, whoever ends up bearing the burden of it, it’s the agency’s fault, and this scheme has to be revised.’ Justice Ruth Ginsburg said if the responsibility had been Kennedy’s to inform the employer, ‘you would have a much stronger argument, but federal law places that burden on the EEOC.’

The EEOC has clarified its bureaucratic policy since 2002.
Results of the case: 17,000 age discrimination claims each year with the EOCC might now be able to file age-bias lawsuits.