The Supreme Court heard oral argument today in Federal Express v. Holowecki, an employment discrimination case in which the employee’s access to justice through the courts is at stake, as we have previously described. Under the Age Discrimination in Employment Act, an employee who believes that she has been subjected to unlawful discrimination must file a “charge” with the EEOC before she can sue, and the EEOC must then notify the employer and attempt to resolve the matter. The key issue before the Court in this case is whether a FedEx employee who contends that the company engaged in unlawful age discrimination can pursue her case when the form that she filed with the EEOC was called an “intake questionnaire” and not a “charge,” but still contained the contents required of a “charge.” The EEOC did not, however, process the form as a “charge” or provide notice to Fed Ex.

At oral argument, counsel for FedEx took a very extreme position, arguing that a document cannot be a “charge” unless it results in notice to the employer, something that is the responsibility of the EEOC and not within an employee’s control. Such a rule would penalize workers for the EEOC’s failings, and FedEx’s argument did not seem to garner much sympathy even from the Court’s most conservative Justices.

The Justices did, however, express a good deal of frustration with the EEOC’s procedures for handling initial documents submitted by aggrieved workers. Whether that will lead them to permit the case to go forward remains to be seen. Justice Scalia seemed the most skeptical of allowing the “intake questionnaire” to serve as a “charge,” stating in his inimitable way, “we can’t run the system for people who are either illiterate or don’t even have friends who are literate. We can’t run a system that way. So I look at this, and I say this is not a charge.”

A decision in the case is expected by the end of June. People For the American Way Foundation has filed an amicus curiae brief in support of the employee.