The Skidmore Conundrum: Admin Law Wrapped Inside Employment Discrim Law
posted by Paul Secunda
I’m going Pasquale on ya (the guy is amazingly blog-prolific) and doing two posts in a row today.
Yesterday, the U.S. Supreme Court handed down its opinion in the case of Federal Express v. Holowecki, which decided the standard for what constitutes an administrative charge of discrimination under the Age Discrimination in Employment Act (ADEA). The particulars of the holding can be found here, but I wanted to focus on the non-employment discrimination law parts of the case. In particular, the administrative law discussion in Holowecki.
Not teaching Admin Law, but teaching classes like Employment Discrimination and Labor Law, in which admin law plays a large role, I’ve been vaguely keeping track of the debate about Chevron deference vs. Skidmore deference, and questions about what Skidmore deference exactly is.
In Holowecki, the Court wrote thusly on the deference the Equal Employment Opportunity Commission’s interpretation of its own regulations are due:
In our view the agency’s policy statements, embodied in its compliance manual and internal directives, interpret not only the regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they do reflect “ ‘a body of experience and informed judgment to which courts and litigants may properly resort for guidance.’ ” Bragdon v. Abbott, 524 U. S. 624, 642 (1998) (quoting Skidmore v. Swift & Co., 323 U. S. 134 (1944)). As such, they are entitled to a “measure of respect” under the less deferential Skidmore standard. Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 487, 488 (2004); United States v. Mead Corp., 533 U. S. 218, 227–239 (2001). Under Skidmore, we consider whether the agency has applied its position with consistency. Mead Corp., supra, at 228; Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). Here, the relevant interpretive statement, embodied in the compliance manual and memoranda, has been binding on EEOC staff for at least five years. See Thornton Memo, supra. True, as the Government concedes, the agency’s implementation of this policy has been uneven. See Brief for United States as Amicus Curiae 25. In the very case before us the EEOC’s Tampa field office did not treat respondent’s filing as a charge, as the Government now maintains it should have done. And, as a result, respondent filed suit before the agency could initiate a conciliation process with the employer.
These undoubted deficiencies in the agency’s administration of the statute and its regulatory scheme are not enough, however, to deprive the agency of all judicial deference. Some degree of inconsistent treatment is unavoidable when the agency processes over 175,000 inquiries a year. Id., at 19, n. 10. And although one of the policy memoranda the Government relies upon was circulated after we granted certiorari, the position the document takes is consistent with the EEOC’s previous directives. We see no reason to assume the agency’s position—that a charge is filed when the employee requests some action—was framed for the specific purpose of aiding a party in this litigation. Cf. Bowen v. Georgetown Univ. Hospital, 488 U. S. 204, 212–213 (1988).
So, is the Court breaking new administrative law ground here or this part of the same ol’, same ol’ for this part of the law? Employment discrimination minds want to know. Ethan “Chicken Man” Lieb, are you out there in cyberland? Kristin Hickman?
February 28, 2008 at 11:50 am
Posted in: Administrative Law
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Responses (2)
Stephen Aslett - February 28, 2008 at 1:09 pm
This is standard, bread-and-butter admin law as far as I can tell.
It’s well established that an agency’s interpretive statements are entitled only to Skidmore deference. And it’s well established that courts look to things like consistency of interpretation and implementation in deciding how much deference to give an agency’s interpretation under Skidmore.
(Of course, I’ve always found Skidmore deference to be odd. It seems to me that deference only to the degree that an agency’s interpretation has the “power to persuade” isn’t really deference at all. Either the agency’s interpretation is persuasive in light of the language of the enabling act or it isn’t. I could see why deference to the agency would be appropriate in the rare case where the agency’s interpretation and an alternative interpretation are equally persuasive, but I imagine that rarely happens. If an agency really wants Chevron deference, it can always engage in rulemaking. My opinion aside, the true degree of deference that Skidmore requires is still hotly debated. See Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 125 (2007).)
Bruce Boyden - February 28, 2008 at 4:14 pm
I’m going Pasquale on ya
A phrase is born…
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