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No love for the EEOC on the SC

Judging from today’s oral argument in the case of Federal Express Corp. v. Holowecki, the justices of the Supreme Court are not happy with the way things are being run at the Equal Employment Opportunity Commission – particularly Justice Antonin Scalia.

The case considers whether an intake questionnaire filled out by an employee constitutes a “charge” of discrimination, triggering the agency’s duty to notify the employer and giving the employee, after a period of time, the ability to file a discrimination suit.

But after hearing from the attorneys representing FedEx that in practice, EEOC officials sometimes treat the questionnaires as charges and give employers notice, while other times agency officials treat the forms as mere “pre-charge” paperwork, Scalia gave an admonition to Toby Heytens, the assistant to the Solicitor General who was given 10 minutes to argue the EEOC’s interests in the case at the end of the hour, before he could get a word of his argument out.

“My main concern is to do something that will require the EEOC to get its act in order, because this is nonsense,” Scalia said. “This scheme has to be revised.”

When Heytens argued that the agency makes a determination based on an “objective test” meant to determine the intent of the employee, Scalia stopped him.

“Why do the courts have to struggle with this when the agency could put in bold letters at the top: This is a charge or this is not a charge?” Scalia asked. “Why do fderal district judges have to inquire into ‘manifest intent’ from now until doomsday?!” (Earlier, Scalia showed his disdain for the “manifest intent” test by purposely referring to the concept as “manifest destiny” and “manifest whatever-it-is.”)

Justice Stephen Breyer also seemed frustrated by the absence of a clear agency rule for what constitutes a charge. “I want to know where do I read what the definition of a ‘charge’ is in the EEOC rules?” he asked. “I just want to know where to read it, because I don’t think you’d refer to a rule of an agency, though normally we do. But you don’t refer to a rule that doesn’t exist; you don’t refer to a rule that nowhere can be found; you don’t refer to a rule that is internally inconsistent.”

Chief Justice John Roberts, Jr., seemed to also grow impatient when Heytens began pointing to agency regulations for an answer. “Why should we defer to an agency regulation when people in the agency hardly ever follow it?” he asked.

Justice Clarence Thomas, who was once chairman of the EEOC, remained silent during oral argument – except for occasional whispered chatter with bench neighbor Breyer.

More on oral arguments in this case tomorrow on the Lawyers USA website, and even more on the case will be in the next issue of Lawyers USA.

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